Careful lawyers always consider both evidentiary protections: attorney-client privilege, which is absolute but fragile; and work product doctrine protection, which should be preceded by a litigation hold and can sometimes be overcome, but does not require a lawyer’s involvement and can survive disclosure to friendly third parties.
In Thompson v. Seattle Public Schools, Case No. 2:25-cv-00468-TL, 2025 U.S. Dist. LEXIS 127233 (W.D. Wash. July 3, 2025), an employment discrimination plaintiff sought discovery of defendant school district’s litigation holds. The court explained that the “attorney-client privilege” protected such litigation holds ” ‘if prepared by counsel,’ ” but it did not protect “communications among recipients of litigation-hold notices about the litigation holds” that “were not prepared by counsel and were circulated or disseminated within the organization without counsel’s participation.” Id. at *20 (citation omitted). Elsewhere, the opinion mentions work product protection, so one wonders if the defendant school district mistakenly failed to claim that separate protection for the hold-related documents — which would not have required counsel’s direction or involvement.
The federal work product rule could not be clearer — it first mentions documents prepared “by … another party” then mentions documents prepared by such party’s “representative.” The rule lists six examples of representatives, only one of which is “attorney.” Fed. R. Civ. P. 26(b)(3)(A).