Q: What date of creation of document has to do with asserted privilege for non-disclosure of document?

A: The date a document was created can be relevant to whether it is protected by attorney-client privilege or work product privilege and therefore shielded from disclosure during litigation. A few key considerations:

Attorney-Client Privilege

- For attorney-client privilege to apply, the communication must have been made for the purpose of seeking or providing legal advice. The date can help establish this purpose.

- The privilege extends to communications made in anticipation of litigation. So the timing relative to when a legal dispute arose is important.

- In general, the privilege applies regardless of the age of the document. An email from 10 years ago can still be privileged today if the elements were met at the time it was created.

Work Product Doctrine

- This protects materials prepared by or for an attorney in anticipation of litigation or for trial. The date helps determine if this "anticipation" element is satisfied.

- Work product protection can expire, e.g. for "fact" work product in federal courts, it ends when the litigation concludes. "Opinion" work product has longer lasting protection.

- Most courts say documents created in the ordinary course of business, rather than primarily for litigation, are not work product regardless of timing.

So in summary, while an old document is not automatically privileged, the creation date provides key context for whether the attorney-client or work product privileges apply. The date alone is not dispositive, but it's an important factor courts consider along with the document's content and circumstances. Consult with an attorney for guidance on your specific documents and case.