Privilege review is an important and necessary step in preparing for litigation. Privilege review serves to protect documents that are not legally discoverable, either because the client is asserting the attorney-client privilege, or because the documents fall under the protections afforded by the work product doctrine.
Work Product Doctrine VS Attorney-Client Privilege
Although the two types of protected information are often referred to together, the work product doctrine is separate and distinct from the attorney-client privilege. One important distinction between them is that the client is ultimately in control of asserting the attorney-client privilege, whereas the attorney is in control of asserting the work product doctrine.
Attorneys asserting immunity under the work product doctrine should also understand that there are two categories of information the doctrine protects: tangible and intangible work product.
Tangible VS Intangible Work Product
Tangible work product refers to notes, memos, and similar documents that were prepared in anticipation of litigation by or for a party to the litigation (or by someone else on behalf of a party). In contrast, intangible work product refers to the attorney’s opinions and conclusions prepared in anticipation of litigation.
While the scope of materials protected by the work product doctrine is broader than the attorney-client privilege, the assertion of the work product doctrine can potentially be overcome through a showing of necessity. Tangible documents and records may still be discoverable if the other party demonstrates a substantial need for the documents. If the other party would not be able to obtain the information through other means without undue hardship, work product immunity may not apply.
However, intangible work product (the attorney’s opinions, conclusions, or mental impressions) is only discoverable if the opposing party can show that the attorney’s intangible work product is at issue in the case at hand. There must also be a compelling need for discovery of intangible work product.
When conducting privilege review activities, observing the various distinctions noted above can help ensure that immunity from discovery under the work product doctrine is asserted when appropriate.
Baer Reed offers a full range of legal support services, including privilege review and privilege log drafting, to law firms and corporate legal departments. To learn more, contact us online or call (888) 433-1990.
Mr. Reyes graduated with honors from the Ateneo de Manila University, where he received the Procter and Gamble Student Excellence Award. He obtained his Juris Doctor degree from the Ateneo de Manila School of Law. During law school, Mr. Reyes was part of the Philippine delegation to the Willem C. Vis International Commercial Arbitration Moot held in Vienna, Austria. He was also a member of the Ateneo Society of International Law and the St. Thomas More Debate Society. He completed his internship at the Public Attorney’s Office. He wrote a thesis entitled: “To Kill A White Elephant: An Analysis of the Fiduciary Exception to the Corporate Attorney-Client Privilege”. Mr. Reyes is admitted to practice law in the Philippines and the State of New York.
Ms. Lardizabal-Manzano is a graduate of San Sebastian College-Recoletos, where she earned her B.A. in Political Science. In 2003, she received her law degree from Lyceum of the Philippines and was admitted to practice law in 2004.
Matthew Hersh earned a B.A. in Political Science from Columbia University in 1990 and graduated cum laude from Georgetown University Law Center in 1999. He also holds a master’s degree in international relations from the Georgetown University School of Foreign Service.
Cap. Avi Levak (Res. IDF) graduated from from Israel’s prestigious Ben-Gurion University of the Negev with a Bachelor of Science in Computer Science and Mathematics. He is also a Leadership and Communication coach trained in TuT coaching by Alon gal in Israel. Avi specializes in high-level, in-depth analysis of business and client needs, within systems and software strategy and architecture.
Ms. Tyler graduated cum laude from Georgetown University and received her law degree, cum laude, from Georgetown University Law Center. During law school, she interned at the United Nations Economic Commission for Europe. She also worked on The Tax Lawyer journal and was a member of the award-winning Barristers’ Council Mock Trial Team. Ms. Tyler is admitted to practice law in the State of California and the District of Columbia.
Ms. Cruz-Anonuevo graduated cum laude and top nine in her batch from Miriam College with a degree of Bachelor of Arts in InternationalStudies. She obtained her Juris Doctor degree from Ateneo de Manila University School of Law in Rockwell. During law school, she interned in Rivera, Santos, Maranan & Associates. She was also part of Ateneo’s Labor Law Bar Operations. She wrote her thesis on, “Stealing Privacy: Limitations on Media’s Photographic Invasion.,” Ms. Cruz-Anonuevo is admitted to practice law in the Philippines.
Ms. Aquino-Batallones obtained a Bachelor of Arts degree in Development Studies (with Minors in Global Politics and Hispanic Studies) from the Ateneo de Manila University. In 2011, she received her Juris Doctor degree from Ateneo de Manila University School of Law. During law school, she interned at Romulo Mabanta Buenaventura Sayoc & de los Angeles then became an intern of Ateneo Legal Services Center’s Clinical Legal Education Program.
Mr. De Guzman graduated from San Beda College with a degree of Bachelor of Arts Major in Economics and received his law degree from San Beda College of Law. He is multilingual and is fluent in three languages: Chinese, Filipino, and English. He was admitted to the Philippine Bar in 2003.