Decisions Highlight Wisdom Of Considering Both Privilege And Work Product Protection

When withholding documents or communications arguably protected by both the attorney-client privilege and the work product protection, wise litigants consider both. The privilege is absolute, but fragile. The work product doctrine provides only qualified protection, but can cover communications with third parties and survive disclosure to third parties.

LIn United States v. Ghavami, No. 10 Cr. 1217 (KMW) (JCF), 2012 U.S. Dist. LEXIS 80593 (S.D.N.Y. June 5, 2012), the government sought to use secret recordings taken by a government cooperator in a bid rigging case against several defendants. In some of the recordings, the defendants disclosed advice they had received from their company's lawyer. The court held that such disclosure to the government cooperator waived the company's attorney-client privilege. However, the lawyer's litigation-related advice also deserved work product protection. Because disclosing work product to an apparently friendly third party does not