The attorney-client privilege and the work product doctrine provide distinct protections. They derive from different societal interests, offer different protections and can be lost through different behavior. These differences even extend to the availability of interlocutory appellate review of discovery orders.
In In re Vitamins Antitrust Litigation, No. 99-0197 (TFH), 2003 U.S. Dist. LEXIS 3038 (D.D.C. Jan. 24, 2003), the court refused to issue a stay pending some defendants’ interlocutory appeal of an order requiring them to turn over alleged work product material. The court acknowledged that the Cohen “collateral order” doctrine occasionally allows interlocutory appeals of matters involving the attorney-client privilege. However, the court noted that the attorney-client privilege was the type of “institutionally significant status or relationship” justifying collateral review—in contrast to the more modest work product doctrine that did not justify such extraordinary relief. Id. at *22 (citation omitted).
Lawyers who mistakenly equate the attorney-client privilege and the work product doctrine risk misapplying it during discovery, and misanalyzing the possibility of interlocutory appellate relief.