In an action by plaintiff club members following termination of their membership from a golf club, the members filed two motions to compel, seeking the production of certain documents, which defendant management company claimed were protected from production by the attorney-client privilege and the work product doctrine pursuant to Va. Sup. Ct. R. 4:1.

‍Overview

‍The court conducted an in camera review of the documents in question and determined that the documents were not discoverable. The motions to compel did not contain either a substantial need or an undue hardship argument as required under Rule 4:1(b)(3),. Therefore, the members’ counsel did not pursue such an argument, but merely claimed that the documents were not prepared in anticipation of litigation. The management company did not argue that the documents were not otherwise discoverable, but relied solely on the work product doctrine. While some Virginia courts applied a bright-line rule in work product cases, the court applied a case by case test because work could have been done in anticipation of litigation before an attorney became involved in the case. All the requested documents concerned what management considered a very serious matter or a severe incident that could have led to suspension or revocation of club memberships. Considering the nature of the incident involving the instant members, it was reasonably foreseeable right after the incident that litigation might have arisen. Therefore, the documents were protected.

‍Outcome

‍The court denied the two motions to compel.