Many lawyers understand that the attorney-client privilege differs from the work product doctrine, but do not realize how many basic differences can affect the protections' practical applications.

In Texas v. United States, Civ. A. No. 11-cv-1303 (RMC), 2012 U.S. Dist. LEXIS 5 (D.D.C. Jan. 2, 2012), the court described many of the basic elements of the attorney-client privilege and the work product doctrine. The court's discussion highlighted a number of important distinctions.

First, the privilege only protects communications "'between attorneys and their clients,'" and protects a lawyer's communications to a client "'only insofar as the attorney's communications disclose[d] the confidential communications from the client.'" Id. at *7-8 (citations omitted). In contrast, the work product doctrine can protect "'documents and tangible things'" prepared in anticipation of litigation "'by or for another party or its representative'" – thus not requiring a lawyer's participation. Id. at *10 (quoting Fed. R. Civ. P. 26(b)(3)). Second, the privilege belongs to the client, although "clients and lawyers can waive the attorney-client privilege." Id. at *9. In contrast, the work product doctrine "is held by the lawyer, not the client, although either may assert the doctrine during discovery." Id. at *11. Third, courts "tend to apply the privilege narrowly." Id. at *8. In contrast, the work product doctrine can protect any documents that "'can fairly be said to have been prepared or obtained because of the prospect of litigation.'" Id. at *11 (citation omitted).

These and other differences affect how the attorney-client privilege and the separate work product doctrine protection apply in the nitty-gritty world of document productions and discovery. Next week's Privilege Point will note some of the other basic differences between the two protections.

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