Court Analyzes Yet Another Reason to Assert Every Available Protection on a Privilege Log

July 30, 2003

Because the attorney-client privilege and the work product doctrine provide different protections (and can be lost through different actions), careful litigants include both protections (where applicable) on their privilege logs. In fact, listing just one of the protections when both could apply may cause the unwary litigant to lose a protection.

In MCI Construction, LLC v. Hazen and Sawyer, P.C., 213 F.R.D. 268 (M.D.N.C. 2003), the court found that North Carolina’s unusual Public Records Act required even privileged documents in a city’s possession to be opened for public review three years after their creation. The court indicated that the same rule did not apply to work product, but noted that the city had not mentioned the work product protection on its privilege log. Because the city’s assertions of protection were limited to those on its privilege log, the city had forfeited its chance to withhold the documents by not claiming the work product protection.

Litigants should assert every protection that is available, for a variety of reasons—including the possibility of quirky state statutes.