The Work Product Doctrine Can Protect Uncommunicated Materials That Might Not Deserve Protection Under the Attorney-Client Privilege

March 8, 2001

The attorney-client privilege focuses on communications between clients and lawyers. Although the privilege may theoretically cover lawyer-created materials that the lawyer never sends to the client, some courts apply the literal definition of the privilege in denying protection to such materials.

In contrast to the attorney-client privilege, the work product doctrine focuses on lawyers’ trial preparation rather than communications with the client. Thus, the court in In re Grand Jury Proceedings, 219 F.3d 175, 192 (2d Cir. 2000) held that “work-product not communicated to the client remains shielded.”

Lawyers advising their clients in a pre-litigation setting or during the discovery process should remember that the work product doctrine can more readily protect uncommunicated materials than can the attorney-client privilege.