Privilege, Work Product and Litigation Holds: Part I

November 27, 2019

Lawyers should always consider both attorney-client privilege and work product doctrine protections for their clients' and their own documents and communications. The former affords absolute protection, but is fragile. The latter can be overcome, but provides a robust protection. Courts sometimes do not consider one of the asserted protections if the other applies. But that might deprive the holder of the attorney-client privilege's absolute protection or the work product doctrine's ability to survive disclosure that would waive the privilege.

Some courts understand this. In Johnson v. Air Liquide Large Industries U.S. L.P., Case No. 2:18-CV-259-WCB, 2019 U.S. Dist. LEXIS 152963, (E.D. Tex. Sept. 9, 2019), the court analyzed privilege and work product protection for documents created in a slip and fall investigation. The court correctly noted that "[t]he work-product doctrine is not, strictly speaking, a privilege, but instead is a qualified immunity from discovery." Id. at *4. The court concluded that it "need not address" defendant's privilege claim for three withheld documents, "[b]ecause the Court has concluded that the work-product doctrine applies." Id. at *23-24. If the court had stopped there, it might have deprived defendant of the absolute privilege protection. But the court also found after an in camera review that the three withheld documents "would be of very little use to the plaintiff," and thus "are not such that the plaintiff 'has substantial need for the materials to prepare its case.'" Id. at *23. In other words, the work product doctrine provided absolute protection from discovery -- because plaintiff could not overcome it.

Lawyers should always keep both the privilege and work product protections in mind. Next week's Privilege Point will address the same court's discussion of a connection between work product and litigation holds.

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