Chapter 47 Power to Waive Work Product Protection

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 47

POWER TO WAIVE WORK PRODUCT PROTECTION

47.1 INTRODUCTION

One of the most important differences between the attorney-client privilege and the work product doctrine involves the protections' waiver.

47.2 CLIENTS' AND LAWYERS' ABILITY TO WAIVE PROTECTION

Determining who can waive work product doctrine protection requires a subtle analysis. [47.201]

As with the attorney-client privilege, clients clearly can waive work product doctrine protection. [47.202]

Similarly, lawyers acting with their clients' authority can waive the protection. [47.203]

But unlike the attorney-client privilege, work product doctrine protection belongs at least in part to lawyers—which can lead to conflicts between lawyers and their clients. [47.204]

• Most courts hold that clients' decision to waive work product protection trumps their lawyers' view.

• However, some courts hold that lawyers may continue to assert work product protection even if their clients want to waive it.

Most courts hold that lawyers may not withhold work product from their clients. ¹ [47.205]

47.3 THIRD PARTIES' POWER TO WAIVE PROTECTION

Some courts analyze third parties' power to waive litigants' work product protection. [47.301]

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• This issue rarely arises in the attorney-client privilege context, because privilege owners' initial disclosure of privileged communications to most third parties normally waives that fragile privilege. ² Thus, privilege protection normally disappears before third party recipients can disclose privileged communications to someone else.

As discussed below, disclosing work product to non-adverse third parties normally does not waive work product protection, but courts disagree about the effect of such third parties' later disclosure to adversaries. [47.302]

Some courts analyze only the work product owners' original disclosure to the non-adverse third parties. [47.303]

• Under this

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