Second Circuit Notes Three Basic Work Product Principles in a Seven-Paragraph Opinion

July 29, 2009

The work product doctrine differs from the attorney-client privilege in several major respects, but of course the two protections also share several elements.

In Doe v. United States (In re Grand Jury Subpoenas Dated June 5, 2008), No. 09-0162-cr, 2009 U.S. App. LEXIS 9927, at *1 (2d Cir. May 7, 2009) (unpublished opinion), the Second Circuit dealt with a grand jury’s efforts to obtain a “chronology of [target] Doe’s business dealings with a foreign country.” First, the court agreed with the district court that the work product doctrine protected the chronology, even though “Doe was not represented by counsel at the time that he created the chronology; he was between lawyers.” Id. at *2. In contrast to the privilege context, clients can create work product without any lawyer’s involvement. Second, the court held that Doe had waived the work product protection “by disclosing the chronology to his assistant, Jane Roe,” because “she had separate representation from Doe, and her interests in the litigation were divergent from those of Doe.” Id. at *3. Because Doe disclosed work product to an adversary, the same waiver rules applied as in the privilege context. Third, the court held that even if the work product doctrine had survived disclosure to Roe, the government could overcome the protection, because “the information in the chronology would have been probative for purposes of the obstruction of justice investigation,” and because of “the government’s inability to interview Doe, along with Roe’s unfamiliarity with some of the underlying facts.” Id. at *4. In contrast to the privilege context, an adversary can overcome a litigant’s work product protection in certain circumstances.

This very short Second Circuit opinion highlights the need for lawyers to familiarize themselves with some of the key differences between the attorney-client privilege and the work product doctrine.