Documents Can Deserve Both Attorney-Client Privilege and Work Product Doctrine Protection

March 26, 2008

The attorney-client privilege differs in several dramatic ways from the work product doctrine, but lawyers should remember that some documents can be withheld under both protections.

In Adams v. United States, Case No. CV-03-49-E-BLW, 2008 U.S. Dist. LEXIS 3106 (D. Idaho Jan. 10, 2008), the court analyzed several documents withheld by a party. After an in camera review, the court explained that “[t]he documents were clearly intended to be confidential communications prepared by a client for legal advice in response to counsel’s request, and were prepared in anticipation of litigation.” Id. at *11. The court concluded that “the documents meet all the requirements for protection under both the attorney/client privilege and the work product doctrine.” Id.

Lawyers should keep in mind the many important differences between the privilege and the work product doctrine, but also remember that documents might be protected under both doctrines.