Is the Work-Product Protection Broader or Narrower Than the Attorney-Client Privilege?

November 20, 2001

The work-product doctrine provides protection from disclosure that is related to but quite different from the attorney-client privilege. Courts and commentators sometimes compare the breadth of the two doctrines. For instance, in Richard Bryan Bowman v. Brush Wellman, Inc., No. 00 C 50264, 2001 U.S. Dist. LEXIS 14088 (N.D. Ill. Sept. 13, 2001), the court described the work-product protection as “broader” than the attorney-client privilege.

A proper analysis reveals that the work-product protection is both broader and narrower than the attorney-client privilege. It is broader because: (1) any client agent can create work-product, while the attorney-client privilege only protects communications between lawyers and clients (and certain of their agents); and (2) sharing work-product with a third party is not as likely to waive that protection as the sharing of privileged information is to waive the attorney-client privilege (this is the point the Bowman court was making).

On the other hand, the work-product doctrine is narrower than the attorney-client privilege because: (1) the protection only applies at certain times—in anticipation of litigation or in preparation for trial; and (2) the protection can be overcome if the adversary has substantial need for the material and cannot obtain its equivalent without undue hardship (courts give greater protection to what is called “opinion” work-product, but only a few courts give opinion work-product the absolute protection that privileged communications deserve).

Lawyers should become familiar with the critical differences between the work-product doctrine and the attorney-client privilege. Because each doctrine has strengths and weaknesses that the other does not, parties normally will want to assert both protections when they are available.