Although federal courts must follow federal law in making work product determinations (because the work product doctrine comes from a federal Rule), federal courts are sometimes called upon to decide which jurisdiction’s attorney-client privilege law applies. Generally speaking, federal privilege law applies in federal question cases, while state privilege law applies in diversity cases. However, the choice of laws analysis sometimes requires more subtle determinations.
Courts facing these difficult issues sometimes find a way to avoid them. For instance, in Lewis v. UNUM Corp. Severance Plan, Nos. 99-2501-CM, 00-2178-CM, 2001 U.S. Dist. LEXIS 5660, at *5 n.1 D. Kan. Apr. 4, 2001) (citations omitted), the court had to decide whether federal or Kansas law applied. Rather than make this determination, the court noted “that there is no real conflict between federal and Kansas law regarding the attorney-client privilege. Whether the court applies federal or Kansas law generally makes no difference in determining whether the attorney-client privilege applies.” Many other courts have reached the same conclusion—thus avoiding a lengthy choice of laws analysis.
Lawyers litigating cases in which there is some privilege choice of laws question might find their careful research and arguments rendered irrelevant by a judicial reluctance to make a choice.