The work product doctrine varies dramatically from the
attorney-client privilege in many important respects. Because the
protections have different strengths and weaknesses, clients and
their lawyers normally should consider both protections when
withholding communications or documents.
The attorney-client privilege can apply whenever clients and
their lawyers communicate about the former's request for legal
advice – even in the absence of litigation or anticipated
litigation. In contrast, the work product doctrine applies only
when clients are in or anticipate litigation. In United States
v. Veolia Environment North America Operations, Inc., Civ. No.
13-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245 (D. Del. Oct. 25, 2013),
the court assessed work product protection for documents a
corporation created in connection with its $4.5 billion worthless
stock deduction. Although companies obviously prepare tax returns
in the ordinary course of their business, the court pointed to
