Attorney-client Privilege

Work Product Doctrine

What laws and rules apply?

Federal law generally governs privilege determinations in federal court. However, state law governs the privilege regarding a claim or defense for which state law supplies the rule of decision (FRE 501).

FRCP 26(b)(3) governs work product determinations in federal court regardless of whether the underlying claims are state or federal in nature.

Is an attorney's involvement required?

Yes. To qualify for privilege protection, a communication generally must either be made by the:

No. The client and any of its representatives (whether or not lawyers) can create work product.

Is a communication required?

Yes. Uncommunicated thoughts (such as file memos) are generally not protected unless they relate to an attorney-client communication. 

No. File memos and other uncommunicated documents may qualify for work product protection if they were prepared in anticipation of litigation, and their creation was motivated by the litigation.

Must the communication (or document) relate to legal advice?

Yes. The scope of the privilege is generally confined to:

No. Work product protection does not depend on the substantive nature of the materials to be protected. The key issue is whether the materials were prepared in anticipation of litigation and were created because of the litigation.

Is litigation required?

No. The attorney-client privilege covers any type of legal advice, whether or not it relates to litigation. Therefore, advice given in a purely transactional setting may qualify for privilege protection.

Yes. Only materials that were prepared in anticipation of litigation, and whose creation was motivated by the litigation, may qualify for work product protection.

Can it be waived?

Yes. The attorney-client privilege is very fragile. Generally, disclosing privileged materials to anyone other than the client, the client's attorney and certain of the client's or attorney's agents may trigger an express waiver. 

Note that Federal Rule of Evidence 502 potentially softens the waiver rules when privileged documents are inadvertently disclosed in litigation.

Yes. However, in contrast to the attorney-client privilege, disclosing work product to "friendly" third parties (even those who do not qualify as agents of the attorney or client) usually does not waive the protection.

Can it be overcome by the adversary's need?

No. The privilege is absolute. A litigation adversary cannot overcome the privilege by claiming it needs access to privileged communications to adequately prepare for trial.

Yes. A party may obtain its adversary's "fact" work product by showing that it has a substantial need for the work product and cannot obtain its substantial equivalent without undue hardship. 

Note, however, that "opinion" work product (that is, documents and other materials embodying the lawyer's analysis or opinions) generally receives greater protection than "fact" work product.

Does the crime-fraud exception apply?

Yes. The privilege does not attach to communications that were made in furtherance of a crime or fraud.

Yes. However, in contrast to the attorney-client privilege, the lawyer's intent also plays a role in applying the crime-fraud exception to work product. For example, work product protection may extend to documents that were created by an innocent lawyer, even if the client was perpetrating a crime or fraud.

How long does it last?

The privilege generally lasts forever, unless it is later waived. 

Some (but not all) courts hold that work product protection ends with the termination of the litigation for which it was created.