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Because the attorney-client privilege depends on the involvement of a lawyer and the work product doctrine protection depends on the anticipation of litigation, the availability of both protections depends on the factual context.

The attorney-client privilege provides such a fragile protection that disclosure to nearly any third party waives the protection. Does that general rule apply to communications among corporate affiliates?

Although the attorney-client privilege primarily protects communications between clients and their lawyers, the protection can sometimes extend to communications between corporate employees without a lawyer's participation.

Litigants claiming work product protection must present evidence that they reasonably anticipated litigation when creating the documents, and that the anticipated litigation motivated the documents' creation.

One dramatic difference between the work product doctrine and the attorney-client privilege involves the former's more robust protection -- which normally survives disclosure to friendly third parties.

The federal work product rule and its state parallel rules protect only documents "prepared in anticipation of litigation or trial by or for another party or its representative[s]." Fed. R. Civ. 26(b)(3)(A)

Several recent Privilege Points have described most courts' narrow interpretation of the "common interest" doctrine – which allows disclosure of privileged communications to a third party without triggering a waiver.

Most courts recognize that privilege and work product protections essentially "evaporate" when the client forms the intent to disclose the communication or document to a third party.

In most states (Illinois being the main exception), attorney-client privilege protection extends to communications between a corporation's lawyers and (1) employees with facts the lawyers need, regardless of the employee's place in the hierarchy, and (2) employees with a "need to know" the lawyers' advice about those facts.

Under what is called the Sporck doctrine, courts sometimes extend opinion work product protection to a lawyer's litigation-related selection of certain documents that are not intrinsically protected by the attorney client privilege or the work product doctrine.

The attorney-client privilege protects communications between clients and their lawyers involving the former's request for legal advice.

In In re Amerlink, Ltd., a Chapter 11 Trustee settled numerous adversary proceedings, including an action against several of the debtor's senior executives.

Under the majority view, the only client agents/consultants inside privilege protection are those essential for the client-lawyer communications.

Unlike an express waiver, an implied waiver can occur without the client actually disclosing any privileged communications or work product.

In some situations, such discovery must be appropriate because the trial lawyer possesses relevant knowledge about some historical event.

Although Fed. R. Civ. P. 26 does not require privilege logs, most courts expect them – and many courts specifically require them.

The work product doctrine varies dramatically from the attorney-client privilege in many important respects.

For decades, companies trying to cooperate with the government have hoped for a change in the general rule that disclosing privileged communications and/or work product to the government waives those protections.