The work product doctrine is not a privilege. The adversary of someone claiming work product protection may still be entitled to obtain the materials if the adversary has “substantial need” of the materials and “is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”
Some courts recognize this important distinction between the work product doctrine and the attorney-client privilege. For instance, the court in Doubleday v. Ruh, 149 F.R.D. 601, 605 n.3 (E.D. Cal. 1993) explained that “[a]ssertion of work product is not an assertion of a privilege, but rather assertion of a qualified immunity.” However, other courts continue to use the incorrect term “work product privilege.” See, e.g., State of Maine v. United States Dep’t of the Interior, 124 F. Supp. 2d 728, 733, 739 (D. Me. 2001).
Although the name obviously is not dispositive or perhaps even important, lawyers should not lose sight of the many critical differences between the attorney-client privilege and the work product doctrine.