JurisdictionNorth Carolina


The attorney-client privilege should be distinguished from the work-product doctrine, a qualified privilege recognized in both the Civil and Criminal Rules.142 In Hickman v. Taylor,143 the Supreme Court rejected "an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties."144 In applying the work-product rule to criminal cases, the Court wrote:

At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.145

The work-product doctrine generally protects a broader range of materials than does the attorney-client privilege. The former protects materials prepared in anticipation of trial, while the latter is limited to communications.

However, the protection for work product is not absolute; it may be overcome if the party seeking discovery shows that she has a "substantial need" for the materials and is unable without "undue hardship" to obtain the substantial equivalent of the materials by other means.146

The work product privilege can also be waived.147 Rule 502, adopted in 2008, contains provisions on subject matter and inadvertent waiver comparable to those that apply to the attorney-client privilege.



[142] Fed. R. Civ. P. 26(b)(3); Fed. R. Crim. P.16(a)(2) (prosecution); Fed. R. Crim. P. 16(b)(2) (defense counsel). See United States v. Ary, 518 F.3d 775, 783 n.4 (10th Cir. 2008) ("Unlike the attorney-client privilege, the work-product doctrine is distinguishable from the testimonial 'true' privileges. The work-product doctrine is codified in Fed.R.Civ.P. 26(b)(3) and is therefore excepted from Fed.R.Evid. 501.").

[143] 329 U.S. 495 (1947).

[144] Id. at 510. The Court further commented that "it is essential that a lawyer work with a certain degree of privacy" and if discovery of the material sought were permitted "much of...

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