Last week's Privilege Point noted a federal court's general discussion of three key differences between the attorney-client privilege and the work product doctrine. Texas v. United States, Civ. A. No. 11-cv-1303(RMC), 2012 U.S. Dist. LEXIS 5 (D.D.C. Jan. 2, 2012). This week's Privilege Point continues the court's discussion.
The fourth key difference, because it blocks "full disclosure" of information, is that the privilege offers absolute protection. Id. at *8. In contrast, work product protection "is based on a legal doctrine, and not a 'privilege.'" Id. at *11. Therefore, the protection is "qualified and not absolute; it can be overcome" if the adversary can establish "'that it has substantial need for the materials . . . and cannot, without undue hardship, obtain their substantial equivalent by other means.'" Id. at *11-12 (quoting Fed. R. Civ. P. 26(b)(3)(A)(ii)). Fifth, the court's review of the attorney-client privilege did not mention litigation, because the privilege does not depend on litigation or anticipated litigation. In contrast, on its face the work product doctrine protects only "'documents and tangible things'" prepared "'in anticipation of litigation or for trial.'" Id. at *10 (quoting Fed. R. Civ. P. 26(b)(3)). The court did not directly address another critical distinction between the privilege and the work product doctrine – that disclosing a privileged communication to nearly any third party waives the privilege, while disclosing work product to a non-adverse third party generally does not waive work product protection.
Lawyers should keep in mind these and many other differences between the two protections. It is almost always best to consider both of them. For instance, the attorney-client privilege has the advantage of absolute protection, but its narrowness and fragility might make it less valuable than the work product protection if the client might have shared a protected document with some third party.
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