Last week’s Privilege Point described a court’s acknowledgment that a mentally ill plaintiff’s live-in boyfriend had provided “meaningful assistance” to the plaintiff in dealing with her lawyer, but was not “necessary or essential” for the plaintiff to obtain her lawyer’s advice. Harrington v. Bergen Cty., A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727, at *11 (D.N.J. Sept. 13, 2016). This meant that communications in her boyfriend’s presence were not privileged, and that any privileged communication later shared with her boyfriend lost privilege protection.
The court then turned to the work product analysis – and dealt with two related issues. First, the court correctly held that any work product that was “transmitted to or shared with” the boyfriend did not lose that separate protection. Id. at *15. As the court explained, “there is no indication of disclosure to adversaries,” so work product protection remained. Id. Second, the court incorrectly held that “the work product doctrine does not protect documents, emails, or other items created by” the boyfriend – because “Plaintiff contends that [her boyfriend] served as her agent or representative, as opposed to” her lawyer’s agent. Id. at *13, *15. It is impossible to square this conclusion with the work product rule itself – which on its face protects documents (motivated by litigation) created “‘by or for another party or its representative.'” Id. at *7 (quoting Fed. R. Civ. P. 26(b)(3)(A)). The boyfriend’s documents should have deserved work product protection either because (1) the documents were prepared “for” the plaintiff, or (2) “by” her “representative.”
Lawyers and their clients should keep in mind the dramatic differences between the attorney-client privilege and the work product doctrine. In this case, the court correctly applied one privilege principle (under the majority approach) and one work product principle — but incorrectly applied another work product principle (which varied from the rule language itself). Perhaps the plaintiff can take solace in the words of Meatloaf’s song: “Now don’t be sad, cause two out of three ain’t bad.”