Attorney’s Selection and Ordering of Non-Privileged Documents From a Large Document Set is Work Product—Printing the Universe is Not
“The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.”
February 19, 2026Non-Party Waited Too Long to Request to Use A.I., and Did Not Provide Sufficient Details
February 23, 2026An attorney’s selection and arrangement of non-privileged documents, contained in a larger universe, in anticipation of litigation, is work product. Aliev v. Trans Union, LLC, 2026 WL 202549 (E.D. Va. Jan. 26, 2026), citing In Re Allen, 106 F.3d 582 (4th Cir. 1997). However, in Aliev, Trans Union failed to demonstrate facts supporting most of its privilege claims based on that doctrine.
In Allen, outside counsel had asked her support staff to gather certain records. “Ms. Allen maintained work product protection over these materials because she had selected the specific documents she wanted to review and had arranged these records in a manner useful for her to review in anticipation of litigation.” Aliev, 2026 WL 202549, at *2.
The Fourth Circuit agreed with Ms. Allen (who was appealing from a contempt holding based on her refusal to produce them) that “Allen’s selection and compilation of these particular documents reveals her thought process and theories regarding this litigation.” Id.
The Aliev court wrote:
Important to the Fourth Circuit, as reflected from the cases it cited and the parentheticals it included, was that Ms. Allen had selected specific documents from a larger universe of material and that producing the specific documents that she had selected would reveal her thought process and theories about the litigation.
Id. (emphasis added). Thus, where there are “reams of documents,” counsel’s selection and compilation of documents “is often more crucial than legal research….” Id. (citation omitted). And, counsel’s “selective review” is based on “professional judgment.” Id.
Of course, the universe of documents is not protected: “The Fourth Circuit made clear… that the universe of documents, including the documents Ms. Allen had selected, were not protected from disclosure.” Id. at *3. The narrow holding was that “Ms. Allen was not required to produce as a separate category of documents the specific ones that she had selected and arranged.” Id.
In Aliev, Trans Union argued that Allen protected its redactions in four sets of documents. The court explained that:
In this Fair Credit Reporting Act case, in response to Plaintiff’s request to produce documents, Trans Union redacted several documents, in whole or in part, and produced a privilege log with 20 entries for documents across a Bates range from TU 00001 to TU 00236. Nineteen of the 20 documents are described as “[d]ocument exported from Trans Union’s Customer Service Relations System [or “exported from CRS”] titled [name of document] depicting actions taken with respect to file at the direction of counsel.” (Defendant’s Privilege Log Entry Nos. 3–22.) The one other document is described as a “[d]ocument exported from Trans Union’s Customer Service Relation System depicting actions taken with respect to the file.” (Defendant’s Privilege Log Entry No. 1.) The assertions of privilege state that the protected material either reflects (1) “actions taken in anticipation of litigation at the direction of counsel pursuant to the attorney work-product doctrine,” or (2) “information compiled at the direction of counsel for anticipated litigation-related analysis.”
The Aliev court directed an in camera review and a proffer to support the privilege designations. Id. at *1. Oversimplifying, Trans Union essentially proffered that the redacted information identified documents that internal counsel collected or printed for expected litigation, and comments by internal counsel regarding actions that counsel and staff took.
As to some of the documents:
The Court overrules the privilege designations on the Summary Report for two reasons. First, Trans Union redacts more than what internal counsel asked support personnel to print…. Second, unlike In re Allen, the redactions to the Summary Report make clear that Trans Union’s counsel did not request that support personnel print only selected documents from a larger universe, which may have revealed counsel’s thought process about the case. Instead, the Summary Report reflects that counsel asked support personnel to print Plaintiff’s entire credit file.
Id. at *3 (emphasis added). Further, as to others, “the redacted information contains no opinions of counsel about why he directed support personnel to print Plaintiff’s credit file. Instead, the reason relates to an external act: either the service of a subpoena or a lawsuit, facts that are not privileged.” Id. at *3.
As to some other documents, the redactions “may relate to attorney-client communications, and the Court sustains them.” That appears to me to be a holding based on content, not on selection and ordering of documents.
This blog was initially posted on Electronic Discovery Reference Model.
