Court Notes Key Difference Between the Attorney-Client Privilege and the Work Product Doctrine

February 6, 2008

The attorney-client privilege differs in many dramatic ways from the work product doctrine. One of the most fundamental differences involves the degree of protection.

In Knepp v. United Stone Veneer, LLC, Civ. A. No. 4:06-CV-1018, 2007 U.S. Dist. LEXIS 92020 (M.D. Pa. Dec. 14, 2007), the court addressed several arguments presented by a corporate defendant seeking discovery of communications between a Title VII plaintiff and her former lawyer. The court rejected “defendant’s argument that the information is relevant and that defendant has a substantial need for the requested information.” Id. at *7. As the court properly explained, “although a ‘substantial need’ argument might be sufficient to overcome the work-product doctrine in certain situations, . . . no amount of need in the world would be sufficient to overcome the attorney-client privilege.” Id. at *7-8.

The privilege’s absolute protection should provide some comfort, although it also has induced courts to narrowly construe the privilege and to emphasize its fragility.