Every court agrees that litigants asserting their attorney-client privilege
or work product protection must prove those protections' applicability. But
as in so many other areas, courts recognize differences in determining who
must carry the burden of proving waiver. All or nearly all courts require
litigants asserting the attorney-client privilege to prove that they have
not waived that fragile protection.
In Pipeline Productions, Inc. v. Madison Companies, LLC, the court
held that once a litigant claiming work product protection establishes the
protection's applicability, "the burden shifts to the party asserting
waiver to establish that a waiver has occurred." Case No. 15-4890-KHV-ADM,
2019 U.S. Dist. LEXIS 142721, at *10 (D. Kan. Aug. 22, 2019). The court
pointed to an earlier District of Kansas case holding that "in contrast to
the attorney-client privilege, 'a party asserting work-product immunity is
not required to prove non-waiver.'" Id. (citation omitted).
Although lawyers and even courts frequently use the generic term
"privilege" to mean both attorney-client privilege and work product
protection, there are many significant (and sometimes even
case-dispositive) differences between those two protections.