Last week’s Privilege Point described a Texas case imposing requirements for a successful work product assertion in that state, including elements other states might not require and that differ from the attorney-client privilege. In re La Joya Indep. Sch. Dist., No. 13-26-00517-CV, 2026 Tex. App. LEXIS 8029 (Tex. App. Aug. 20, 2026).
Other courts recently issued blunt statements comparing the work product doctrine to the attorney-client privilege. In Theriault v. New Direction IRA, Inc., the court quoted an opinion “noting that, in contrast to the attorney-client privilege, ‘a party asserting work-product immunity is not required to prove non-waiver.'” Case Nos. 23-2477-JWB-ADM & 24-2007-JWB-ADM, 2026 U.S. Dist. LEXIS 189893, at *17 (D. Kan. Aug. 24, 2026) (citation omitted). A few weeks earlier, a Texas federal court pointed to several other decisions highlighting another difference: “[t]he voluntary disclosure of privileged materials to government investigators generally waives both attorney client privilege and work-product protection . . . [b]ut for work-product protection, waiver is normally ‘limited to the documents actually disclosed.'” Madison v. Niagara Bottling, LLC, Civ. A. No. H-25-5701, 2026 U.S. Dist. LEXIS 172994, at *5 (S.D. Tex. Aug. 4, 2026).
Litigators must keep abreast of these variations, and non-litigators would be wise to recognize the enormous differences between the attorney-client privilege and the work product doctrine, and the local variations of the latter.
