Decisions Highlight Important Differences Between The Work Product Doctrine And The Attorney-Client Privilege: Part II

Last week's Privilege Point noted that the work product doctrine applies only at certain times, and therefore offers a more limited protection than the attorney-client privilege. The work product doctrine is narrower than the privilege in other ways too.

For instance, work product protection might evaporate, while the attorney-client privilege lasts forever. In Cosmetic Warriors v. Lush Day Spa, LLC, the court explained that some courts protect work product forever, some courts only protect work product created during "closely related" earlier litigation, and some courts only protect work product during the litigation in which it was created. Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *6 (D.N.J. Oct. 4, 2013) (not for publication). The court noted that "the Third Circuit has endorsed the 'closely related' view." Id. A few weeks later, a court dealt with another limitation -- adversaries can overcome litigants' work product protection, while