Federal Court Botches a Privilege Analysis

January 28, 2004

Lawyers should not be discouraged if they make mistakes in analyzing the subtle and complex attorney-client privilege—federal courts make mistakes too.

In Ferko v. National Ass’n for Stock Car Auto Racing, Inc., 218 F.R.D. 125 (E.D. Tex. 2003), the court’s analysis included the following: “Courts ordinarily apply the work-product doctrine only after deciding that the attorney-client privilege does not apply. Conversely, when a court decides that documents and communications are protected by the attorney-client privilege, the work-product doctrine does not apply.” Id. at 135 (citation omitted). This is hopelessly wrong. Although some courts find it unnecessary to address one protection after ruling on the other protection, the privilege and the work product doctrine are two separate protections—communications or documents can be protected by both, one or the other, or neither.

Sometimes the most difficult job facing a lawyer litigating a privilege issue is explaining it to the court.