Last week’s Privilege Point noted a federal court’s general discussion of three key differences between the attorney-client privilege and the work product doctrine. Texas v. United States, Civ. A. No. 11-cv-1303(RMC), 2012 U.S. Dist. LEXIS 5 (D.D.C. Jan. 2, 2012). This week’s Privilege Point continues the court’s discussion.

The fourth key difference, because it blocks “full disclosure” of information, is that the privilege offers absolute protection. Id. at *8. In contrast, work product protection “is based on a legal doctrine, and not a ‘privilege.'” Id. at *11. Therefore, the protection is “qualified and not absolute; it can be overcome” if the adversary can establish “‘that it has substantial need for the materials . . . and cannot, without undue hardship, obtain their substantial equivalent by other means.'” Id. at *11-12 (quoting Fed. R. Civ. P. 26(b)(3)(A)(ii)). Fifth, the court’s review of the attorney-client privilege did not mention litigation, because the privilege does not depend on litigation or anticipated litigation. In contrast, on its face the work product doctrine protects only “‘documents and tangible things'” prepared “‘in anticipation of litigation or for trial.'” Id. at *10 (quoting Fed. R. Civ. P. 26(b)(3)). The court did not directly address another critical distinction between the privilege and the work product doctrine – that disclosing a privileged communication to nearly any third party waives the privilege, while disclosing work product to a non-adverse third party generally does not waive work product protection.

Lawyers should keep in mind these and many other differences between the two protections. It is almost always best to consider both of them. For instance, the attorney-client privilege has the advantage of absolute protection, but its narrowness and fragility might make it less valuable than the work product protection if the client might have shared a protected document with some third party.

Many lawyers understand that the attorney-client privilege differs from the work product doctrine, but do not realize how many basic differences can affect the protections’ practical applications.

In Texas v. United States, Civ. A. No. 11-cv-1303 (RMC), 2012 U.S. Dist. LEXIS 5 (D.D.C. Jan. 2, 2012), the court described many of the basic elements of the attorney-client privilege and the work product doctrine. The court’s discussion highlighted a number of important distinctions.

First, the privilege only protects communications “‘between attorneys and their clients,'” and protects a lawyer’s communications to a client “‘only insofar as the attorney’s communications disclose[d] the confidential communications from the client.'” Id. at *7-8 (citations omitted). In contrast, the work product doctrine can protect “‘documents and tangible things'” prepared in anticipation of litigation “‘by or for another party or its representative'” – thus not requiring a lawyer’s participation. Id. at *10 (quoting Fed. R. Civ. P. 26(b)(3)). Second, the privilege belongs to the client, although “clients and lawyers can waive the attorney-client privilege.” Id. at *9. In contrast, the work product doctrine “is held by the lawyer, not the client, although either may assert the doctrine during discovery.” Id. at *11. Third, courts “tend to apply the privilege narrowly.” Id. at *8. In contrast, the work product doctrine can protect any documents that “‘can fairly be said to have been prepared or obtained because of the prospect of litigation.'” Id. at *11 (citation omitted).

These and other differences affect how the attorney-client privilege and the separate work product doctrine protection apply in the nitty-gritty world of document productions and discovery. Next week’s Privilege Point will note some of the other basic differences between the two protections.