Because every court includes the absence of waiver in the elements supporting an attorney-client privilege claim, nearly every court holds that a litigant claiming privilege protection bears the burden of proof for establishing lack of waiver. As in so many other areas, the work product doctrine presents a different analysis.
The work product doctrine does not include absence of waiver among its elements, and courts disagree about who has the burden of proof on the waiver issue. In Salem Financial, Inc. v. United States, No. 10-192T, 2012 U.S. Claims LEXIS 14, at *7 (Fed. Cl. Jan. 18, 2012), the court bluntly stated that “the party invoking the [work product protection] must prove that it has not waived the protection.” Nine days later, another federal court stated with equal certainty that the adversary challenging a litigant’s work product claim must establish that the litigant waived the protection – “because, in contrast to the attorney-client privilege, the proponent of the work product doctrine does not bear the burden of proving non-waiver.” Judicial Watch, Inc. v. United States Dep’t of Homeland Security, Civ. A. No. 11-00604 (CKK), 2012 U.S. Dist. LEXIS 9566, at *29-30 (D.D.C. Jan. 27, 2012).
The pertinent court’s approach to this issue could be important, if not dispositive.