47.4 Similarities to the Attorney-client Privilege

• Library: The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (Virginia CLE) (2013 Ed.)

47.4 SIMILARITIES TO THE ATTORNEY-CLIENT PRIVILEGE

47.401 Introduction. A small number of courts have held that the same waiver rules apply to the work product doctrine and the attorney-client privilege. ¹⁵ To a certain degree, these courts are correct. A number of basic waiver rules apply with equal force to both types of protection.

Given the presence of both similarities and differences, one should never over-read general statements about the waiver principles being the same in the privilege and work product context. For instance, some courts make blanket statements such as "the same standard for waiver applies to both the attorney-client privilege and the work-product doctrine." ¹⁶

Statements like this simply do not apply in all respects.

It makes sense to briefly list some of the principles that apply equally in the work product and the privilege contexts. Chapters 23 and 25 of this book discuss those basic concepts in the privilege context.

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47.402 No Waiver for Compelled Disclosure. As with the privilege, a waiver occurs only with the voluntary disclosure of work product documents. A compelled disclosure does not cause a waiver. ¹⁷

47.403 No Automatic Waiver in Other Cases. A compelled disclosure in one court usually does not automatically allow a litigant in another court to argue waiver and use the disclosed work product. ¹⁸

47.404 Disclaiming Does Not Avoid a Waiver. In 2011, the Eastern District of New York confirmed that a litigant cannot avoid waiving the work product doctrine, or the attorney-client privilege protection, by disclaiming an intent to waive those protections. ¹⁹

47.405 Not Objecting to Production Can Waive Protection. If a litigant does not object to an adversary's efforts to obtain work product, it usually forfeits the protection. ²⁰ Of course, as with the privilege, it can be difficult to determine whether a litigant put up enough of a fight to render the disclosure "compelled." A work product waiver analysis might also involve determining whether the disclosure was specific enough to cause a waiver.

47.406 Disclosing Facts Does Not Waive Protection. As with the privilege, disclosing facts should not cause a waiver of the work product doctrine protection. ²¹ As one court explained, "disclosing facts contained in privileged [work product-protected] documents (in interrogatories, for instance) does not mean the other party gets the document itself." ²²

More recently, the Southern District of New York held that a company's Special Committee did not waive work product protection covering underlying materials by issuing a final report. "An analogy might be the submission of a brief to a court. Such a submission hardly entitles the other side to discovery of the lawyer-author's communications with fellow lawyers or clients concerning the preparation of the brief." ²³

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Of course, a different result would occur if the Special Report actually disclosed protected communications. ²⁴ There might also be implied waiver implications of the company relying on the fact of a lawyer-driven investigation. ²⁵ However, absent these considerations a client normally does not waive either the attorney-client privilege or the work product doctrine protection by disclosing historical facts. Inexplicably, some courts seem to take a different approach. ²⁶

This issue becomes more...