The attorney-client privilege protection focuses on the content of the communication between a client and a lawyer. For instance, a communication about when or where to meet for a privileged conversation will not deserve protection. On its face, the work product doctrine focuses more on context – protecting documents whose creation is motivated by litigation or anticipated litigation. The majority view extends protection to any documents created “because of” the litigation.
In In re LDK Solar Securities Litigation, No. C07-5182 WHA (BZ), 2010 U.S. Dist. LEXIS 6474 (N.D. Cal. Jan. 7, 2010), the court conducted an in camera review of documents claimed to be work product. The court described the documents as a company executive’s “notes of routine intra-company meetings at which the litigation was discussed and record information such as what lawyers will be retained and what types of assistance [the company] might expect to render the attorneys.” Id. at *5. The court found it “difficult for me to believe” that the U.S. Supreme Court’s original articulation of the work product doctrine (in the 1947 case of Hickman v. Taylor) “would have granted the redacted information any protection” – but felt “constrained by the literal wording” of the work product rule and the “because of” test “to find that the information was prepared by a party representative [the executive] because of litigation, and constitutes work product.” Id. at *6.
Although many litigants do not bother fighting over them, even routine and non-substantive documents like transmittal memos, notes about where and when to meet, etc., can deserve work product protection – the key question is whether those documents would exist “but for” litigation or anticipated litigation.