Attorney-Client Privilege, Work-Product Protection and Waiver

Skadden, Arps, Slate, Meagher & Flom LLP

The attorney-client privilege protects confidential communications between lawyer and client against disclosure to third parties. The attorney work-product doctrine protects materials prepared in anticipation of litigation by a company or its representatives, including attorneys and consultants, from disclosure to adversaries. (Courts have held that internal investigations conducted in anticipation of government enforcement actions generally qualify as “in anticipation of litigation.”) Work product falls into two categories: opinion work product (counsel’s mental impressions and strategies) and fact work product (e.g., counsel’s summaries of facts). Opinion work product is carefully protected by the courts; fact work product also is protected, although it can be discovered if the facts contained therein are relevant, not available from other sources and the party seeking access shows a substantial need.

Once established, privilege and work-product protections apply until they are waived. Disclosing privileged materials to a third party (absent a common interest arrangement) generally waives the privilege. Work product is somewhat different: In general, disclosing work product to a third party only waives the protection if the disclosure is to an adversary or increases the likelihood that an adversary can access the materials.

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