Federal Court Articulates Basic Differences Between The Attorney-Client Privilege And The Work Product Doctrine: Part II

Last week's Privilege Point noted a federal court's general discussion of three key differences between the attorney-client privilege and the work product doctrine. Texas v. United States, Civ. A. No. 11-cv-1303(RMC), 2012 U.S. Dist. LEXIS 5 (D.D.C. Jan. 2, 2012). This week's Privilege Point continues the court's discussion.

The fourth key difference, because it blocks "full disclosure" of information, is that the privilege offers absolute protection. Id. at *8. In contrast, work product protection "is based on a legal doctrine, and not a 'privilege.'" Id. at *11. Therefore, the protection is "qualified and not absolute; it can be overcome" if the adversary can establish "'that it has substantial need for the materials . . . and cannot, without undue hardship, obtain their substantial equivalent by other means.'" Id. at *11-12 (quoting Fed. R. Civ. P. 26(b)(3)(A)(ii)). Fifth, the court's review of the attorney-client privilege did not mention litigation, because the