Court Explores the Role of Lawyers in Determining Privilege and Work Product Protections

December 14, 2005

Some lawyers involved in document productions have a crude understanding that neither the privilege nor the work product protection can apply unless a lawyer has created the document. Like other common misperceptions, this understanding is inaccurate.

In U.S. Bank National Ass’n v. U.S. Timberlands Klamath Falls, L.L.C., Civ. A. No. 112-N, 2005 WL 2037353, at *3 (Del. Ch. Aug. 16, 2005) (unpublished opinion), the court confirmed that: (1) “communications originating from non-attorneys can be protected by the attorney-client privilege, if those communications relay legal advice from counsel to a party with a common interest”; and (2) “[t]he work-product privilege can apply to documents prepared by non-attorneys, if those documents were prepared in anticipation of litigation.”

A lawyer’s involvement in document creation certainly enhances the odds of privilege or work product protection, but the protections can arise without it.