The attorney-client privilege serves an important societal purpose by encouraging full and frank discussions between clients and their lawyers, in whom society has reposed the responsibility for encouraging lawful behavior and resolving disputes amicably. In contrast to this grand social interest, the work-product doctrine has a much narrower purpose.
As explained in Cason v. Builders Firstsource-Southeast Group, Inc., 159 F. Supp. 2d 242, 247 (W.D.N.C. 2001), “the work-product privilege [sic] is intended to prevent a litigant from taking a free ride on the research and thinking of his opponent’s lawyer and to avoid the resulting deterrent to a lawyer’s committing his thoughts to paper.” Although the Cason court erroneously labels the work-product doctrine a privilege (it really is a qualified immunity), the court’s explanation highlights the limited nature of the work-product doctrine. While some courts have expanded the protection to materials other than those that the lawyer actually intends to use in the litigation, even those courts provide the protection only to material prepared in anticipation of litigation, and because of the litigation.
Lawyers relying on the work-product doctrine protection should be aware of the relatively limited societal interest that underlies the protection.