The party asserting the privilege or work product protection usually must prepare a privilege log identifying the protection and explaining its application. Many privilege logs identify the protection as the attorney-client privilege “and/or” the work product doctrine.
In United Investors Life Insurance Co. v. Nationwide Life Insurance Co., 233 F.R.D. 483, 488 (N.D. Miss. 2006), the court justifiably criticized this practice. The court explained that such “and/or” privilege entries are improper, because “opposing counsel and the court should not be left with deciphering that which is the asserting party’s burden.” The court warned that “[c]ounsel should beware of the elemental differences between those assertions and choose accordingly,” and that “[e]rroneous assertions undercut the invoking party’s credibility.”
Litigants should heed these warnings, and properly analyze and then assert either or both protections.