As these Privilege Points have repeatedly emphasized, privilege protection depends on communications’ content — which must be primarily motivated by a client’s request for legal advice, or the lawyer’s responsive provision of legal advice.
As in so many other ways, different principles apply to work product. In Trustees of the Chicago Regional Council of Carpenters Pension Fund v. Drive Construction, Inc., the court handling an ERISA case addressed work product protection for questionnaires and responses that plaintiffs’ lawyers “used . . . to determine whether the person who had filled it out ‘would make a good witness.'” No. 1:19-cv-2965, 2022 U.S. Dist. LEXIS 114941, at *4 (N.D. Ill. June 29, 2022) (internal citation omitted). The court first properly noted that “even a document that contains ‘purely factual information’ may be considered work product.” Id. at *8 (citation omitted). The court then rejected defendant’s argument that the work product doctrine did not apply because a non-lawyer participated in creating the questionnaires template and instructing folks on how to complete it — properly acknowledging that the work product rule on its face covers documents created by non-lawyers. In protecting the questionnaires as work product, the court correctly explained that “[t]he relevant question, then, is not what information the questionnaires contain or who created them, but whether they were created in anticipation of litigation.” Id. at *9.
Lawyers should remember this distinction between attorney-client privilege and work product doctrine protection. With the attorney-client privilege, content is king — with work product, context is king.