Assessing every privilege and work product claim first involves choosing the applicable law. A few principles seem nearly unanimous, but that analysis sometimes involves courts’ differing approaches.
In National Fire & Marine Insurance Co. v. Nightingale Healthcare LLC, Case No. 2:25-cv-00751-JHC, 2026 U.S. Dist. LEXIS 109758, at *3 (W.D. Wash. May 18, 2026), the court noted that “[i]n federal court, the application of attorney-client privilege is governed by state law, whereas work-product protection is governed by federal law.” One day later, the court in Griffith v. City of Rockland, No. 2:25-cv-00377-SDN, 2026 U.S. Dist. LEXIS 110358, at *2 (D. Me. May 19, 2026), explained that because “[p]laintiff asserts both state and federal claims, . . . federal common law controls . . . assertion of the attorney-client privilege” (articulating the general approach when federal law predominates).
Unfortunately, many choice-of-law issues involve more complicated analyses – resulting in differing conclusions from state to state and even from federal court to federal court.