More litigation missteps to avoid in the EDVA

The EDVA, famously known as the “Rocket Docket” due to its status as the fastest U.S. District Court for 11 of the past 13 years, has several unique local rules, practices and precedents. These present a risk of costly missteps for the unaware litigant.

We previously covered four of those missteps, and this article details four more things not to do when litigating in the EDVA.

Focus on a detailed privilege log to avoid a claim of waiver

Closely related to the issue of general objections is the EDVA’s strict requirements for privilege logs.

The court has stated that a party “claiming privileges must demonstrate entitlement thereto in a list or log that describes the ground of the putative protection with a degree of specificity that allows the opposing party to assess the assertion of the privilege against the applicable tests and to challenge any claim thought to be wanting.” (See, Rambus, Inc. v. Infineon Techs, (E.D. Va. 2004).)

This is a particularly significant issue for litigants to be aware of, since a “finding of inadequacy … conceptually is sufficient to warrant a finding that the privileges [have] been waived.” Importantly, some judges require that the privilege log must be produced when objections are served, or else the privilege claims are deemed waived.

To avoid waiving privilege due to an inadequate privilege log, litigants should immediately consider privilege issues upon service of discovery and decide whether any prophylactic motions (e.g., a motion for protective order) are necessary by the 15-day objection deadline.

Additionally, in preparing a privilege log, litigants must be careful to include a sufficient degree of specificity to allow the court and opposing party to assess the basis of the privilege. A prudent litigant will carefully consider relevant case law setting forth the tests for assessing the type of privilege claim they intend to assert and prepare privilege log descriptions with those tests specifically in mind. (See, e.g., Hawkins v. Stables, (4th Cir. 1998); Rambus, Inc. v. Infineon Techs, (E.D. Va. 2004).)

Avoid a claim of work product privilege waiver

Courts construe work product privilege claims narrowly, and multiple judges in the EDVA have proven to be particularly strict, requiring proof beyond a mere showing that the material was prepared in anticipation of litigation.

In RLI Insurance Co. v. Conseco, Inc. (E.D. Va. 2007), Judge Payne of the Richmond Division scrutinized guidance from the U.S. 4^th Circuit Court of Appeals that work product must be created “because of” the prospect of litigation, and derived two limiting principles. First, the potential for litigation must be a “real likelihood” rather than “merely a possibility,” and second, the doctrine protects “only work that was conducted because of … litigation, not work that would have been done in any event.” (Emphasis added).

That second principle is important to note. Looking to case law outside of the Fourth Circuit, Judge Payne held that even if the material in question was created in anticipation of a “real likelihood” of litigation, the work-product privilege may be waived if the material “would have been created in essentially similar form irrespective of the litigation.”

Further, if there is evidence that the material was required or used for a non-litigation purpose in addition to the litigation purpose, the party asserting the privilege “bears the burden to show how it would have [accomplished the non-litigation purpose] differently were no litigation … in sight.”

Careful consideration of this requirement is particularly important when an organization circulates investigative materials prepared in anticipation of litigation among multiple departments within the organization, without a clear indication that the materials are shared for litigation-related purposes as opposed to other regulatory or business-related purposes. Parties may inadvertently waive work-product protection over confidential investigative materials simply by sharing them internally with too many non-legal individuals, as the court may consider this evidence that the materials would have been created in “essentially similar form” regardless of the litigation. The fact that such materials are initially requested by, prepared for, and/or provided to legal counsel may not be sufficient to maintain privilege.

Beware the Alexandria division’s expedited briefing schedule

The EDVA is made up of three divisions — Richmond, Alexandria and Norfolk/Newport News. Another notable example of the EDVA’s quickened pace is the accelerated one-week briefing schedule for non-dispositive motions in the Alexandria Division.

Alexandria scheduling orders issued under Local Rule 16(B) generally provide that a non-dispositive motion filed by 5 p.m. on Friday may be noticed for a hearing before the assigned magistrate judge at 10 a.m. on the following Friday.

Under this remarkably “expedited schedule,” the opponent’s response is due by 5 p.m. on the following Wednesday, and the reply “should be filed as early as possible on Thursday.” (See, e.g., Mars, Inc. et al. v. The J.M. Smucker Co., et al. (E.D. Va. March 21, 2017) (Rule 16(B) Scheduling Order).)

This schedule substantially reduces the typical motion timeline under Local Rule 7(F), which provides 14 days for a response and six days for a reply. Litigants who are unaccustomed to this schedule and who do not pay close attention to the scheduling order may be caught off guard by a late-Friday motion that requires a response to be prepped and filed in only three business days.

Local Rule 37, however, requires counsel to “confer to decrease, in every way possible the filing of unnecessary discovery motions.” Counsel must meet and confer on any discovery dispute before filing a motion, and the motion must contain a certification that a good faith effort has been made to resolve the dispute prior to filing the motion.

Courtesy copies matter!

Litigants in the EDVA must be aware that courtesy copies of documents filed electronically may be required, and that the requirement varies between divisions and judges. Each division has outlined specific requirements for the format and delivery of courtesy copies, which may be found on the EDVA’s website.

In the Alexandria Division, all judges require a paper copy of each motion, brief and supporting document, which must be delivered directly to the clerk’s office. By contrast, the judges of the Richmond and Norfolk Divisions have each proscribed individual courtesy copy requirements, varying based on the type or length of documents for which a copy must be provided and the number of copies required.

Litigants must carefully note the requirements of their judge and the division in which they are litigating to ensure compliance.

Conclusion

The EDVA is a unique district known for its fast pace and high-profile litigation, but it also has many rules and practices that present a danger to the unfamiliar litigant. A party litigating in this district would do well to engage competent counsel who know the ins-and-outs of the EDVA’s unique local rules, practices and judicial preferences.

Indeed, more than just being a good idea, the local rules require that local counsel participate actively in the litigation, stating that “practitioners from another state or the District of Columbia shall be accompanied by a member of the bar of this Court in all appearances before this Court.” (See, Local Rule 83.1(D)(1)(b).)

David N. Anthony, Timothy J. St. George and H. Scott Kelly are partners, and Noah J. DiPasquale is an associate in the Richmond office of Troutman Pepper Hamilton Sanders. This is part two of a two-part series. The first installment appeared in the Jan. 24, 2022, issue of Virginia Lawyers Weekly and can be found online here.