Differences in the “Waiver” Doctrine Between the Attorney-Client Privilege and the Work Product Doctrine

June 28, 2001

The attorney-client privilege provides absolute protection in the right circumstances, but it is a fragile protection that can be easily lost if privileged information is shared outside the attorney-client relationship. In contrast, the work product doctrine provides only a qualified immunity, but materials protected by the work product doctrine generally can be shared with friendly third parties without causing a waiver.

In some cases, courts consider this important difference in connection with the sharing of identical material. In Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000), a law firm claimed that the attorney-client privilege protected communications between it and a public relations firm, and that the work product doctrine protected the public relations firm’s materials. The court rejected both of these arguments. However, the court found that the law firm’s sharing of materials (protected both by the attorney-client privilege and the work product doctrine) with the public relations firm did waive the attorney-client privilege but did not waive the work product doctrine protection.

Given the potentially disastrous effects of a waiver, lawyers must understand the different waiver implications of sharing materials protected by the attorney-client privilege and the work product doctrine.