October 24, 2018
In In re National Prescription Opiate Litigation, the court explained that the work product doctrine is "broader than the attorney-client privilege." Case No. 17-MD-2804, 2018 U.S. Dist. LEXIS 142270, at *61 (N.D. Ohio Aug. 1, 2018) (citation omitted). One week later, the court in Wolff v. Biosense Webster, Inc., indicated that "[t]he work-product doctrine is narrower than the attorney-client privilege." No. EP-17-CV-00328-PRM, 2018 U.S. Dist. LEXIS 133742, at *5 (W.D. Tex. Aug. 8, 2018). Two days after that, the court in Burrow v. Forjas Taurus S.A., stated that the work product doctrine is "broader than the attorney-client privilege." Case No. 16-21606-Civ. TORRES, 2018 U.S. Dist. LEXIS 134897, at *3 (S.D. Fla. Aug. 10, 2018). Which is it?
The work product doctrine is both broader and narrower than the attorney-client privilege. It is broader, because: (1) anyone (not just lawyers or clients) can create protected work product, if motivated by anticipated litigation; (2) the work product doctrine can protect such disparate items as documents, accident scene pictures, translations, collections of newspaper articles, etc.; and (3) the work product doctrine is more robust than the privilege, so disclosing work product to non-adverse third parties normally does not waive that protection. The work product doctrine is narrower than the attorney-client privilege, because: (1) it applies only at certain times – during or in anticipation of litigation; and (2) it can be overcome -- if the adversary establishes substantial need for the withheld work product and the inability to obtain its substantial equivalent without undue hardship.
Corporations and their lawyers should always consider both possible protections – each has advantages and disadvantages.