Lawyers’ Failure To Consider Work Product Protection Prejudices Their Clients: Part II

October 7, 2020

Last week’s Privilege Point described a husband’s probable loss of attorney-client privilege protection when using his employer’s email system for communications with his personal lawyer. Because he had only raised the alternative work product protection argument at the end of his appellate reply brief, he missed the chance to claim that broader and more robust protection. Even large and well-represented corporations sometimes make the same mistake.

In Naumoski v. Costco Wholesale Corp., No. 2:19-cv-491, 2020 U.S. Dist. LEXIS 97026, at *3 (N.D. Ind. June 3, 2020), an ADA plaintiff claimed that defendant Costco waived its attorney-client privilege when its regional operations manager forwarded to her several privileged communications between Costco’s manager and Costco’s “internal and external employment counsel.” Fortunately for Costco, the court found that the operations manager’s “disclosure [to plaintiff] of the email communications was a mistake,” and ordered plaintiff to return them. Id. at *11. But the court was more sympathetic to plaintiff’s motion to strike Costco’s parallel work product claim — noting that “Costco, for the first time, in its reply argued that the email communications were protected by the work product doctrine.” Id. at *4. The court emphasized that “Costco’s motion for protective order . . . failed to raise the work product doctrine,” and “[i]n fact, neither party even mentioned the work product doctrine nor presented any argument or case authority based upon it.” Id. at *5. The court therefore granted plaintiff’s “Motion to Strike the Portions of Defendant’s Reply that Assert Work Product Doctrine.” Id.

Communications and documents created before anyone anticipated litigation can either be privileged or not – but they generally will not deserve work product protection. In contrast, documents or communications created during or in anticipation of litigation, but involving or shared with outsiders, may be protected work product — but generally will not deserve the narrower and more fragile privilege protection. Litigation-related communications between lawyers and their clients may deserve both, and lawyers owe it to their clients to consider both.