What Type of Client “Representative” Can Create Protected Work Product?

October 22, 2008

Among the many differences between the attorney-client privilege and work product doctrine, any client “representative” may create protected work product in the proper circumstances.

In In re Summons Issued to Ernst & Young, LLP, 663 S.E.2d 921 (N.C. Ct. App. 2008), the trial court rejected an argument that Wal‑Mart’s accountant Ernst & Young could claim work product for documents it prepared. The court of appeals granted an interlocutory appeal, and held that Ernst & Young could create protected work product. The court pointed to a Wal‑Mart executive’s affidavit explaining that Ernst & Young prepared the document in anticipation of litigation rather than in the ordinary course of business. The court ultimately remanded for an in camera review of the documents.

Lawyers representing companies should remember that any client representatives can create protected work product if they are motivated by anticipated litigation.