It should go without saying that a client cannot assure privilege protection for historical pre-existing documents simply by sending them to her lawyer — or else clients would box up all of their files and ship them to their lawyer. Beyond that basic common-sense principle, the protection available for historical documents presents an interesting contrast between the privilege and the work product doctrine.
In the work product context, nearly every court recognizes that the opinion work product doctrine can protect a lawyer’s selection of certain historical documents out of a larger universe of documents. For instance, in the United States v. Cook, No. CR05-0424-TSZ, 2006 U.S. Dist. LEXIS 83636, at *6 (W.D. Wash. Nov. 16, 2006), the court held that the work product doctrine protected the identity of “particular documents” compiled by a lawyer “preparatory to the conference with his clients to discuss their case.” The court indicated that it “need not reach” the issue of privilege, although it explained that attachments that are not intrinsically privileged “‘cannot become privileged by merely attaching them to a communication with the attorney.'” Id. at *6, *5 (citation omitted). About two weeks later, another court said exactly the same thing, explaining that “[a]ttachments which do not, by their content, fall within the realm of the privilege cannot become privileged by merely attaching them to a privileged communication with the attorney.” Miro v. Target Corp., No. 04 C 6267, 2006 U.S. Dist. LEXIS 86030, at *15 (N.D. Ill. Nov. 28, 2006).
Because the opinion work product doctrine can only apply when a client is in or reasonably anticipates litigation, clients and lawyers in non-litigation situations must face the basic rule that precludes privilege protection for historical documents. The law’s failure to develop an analogous protection on the privilege side is perhaps the largest gap in American privilege jurisprudence.