Privileges and other policy exclusions - Attorney-client and...

Learning Outcomes

This article examines attorney-client privilege and the work product doctrine for MBE Evidence and Civil Procedure questions, including:

• The elements, scope, holder, and duration of attorney-client privilege, with special attention to organizational and government clients, confidentiality pitfalls, and how courts determine when communications with agents remain protected
• The main exceptions to privilege—crime-fraud, attorney–client and joint-client disputes, and claimants through the same deceased client—and how these exceptions commonly appear in bar-style hypotheticals
• How privilege is properly asserted, preserved, and waived, including express and subject-matter waiver, inadvertent production and clawback under Federal Rule of Evidence 502, and putting legal advice “at issue” in litigation
• The definition, elements, and policy rationale of the work product doctrine, distinguishing materials prepared in the ordinary course of business from those created “because of” anticipated litigation in both civil and criminal matters
• The differences between ordinary (qualified) and opinion (almost absolute) work product, the substantial-need and undue-hardship standard, and how courts handle mixed documents containing both factual material and attorney mental impressions
• Strategic comparison of privilege and work product on MBE-style fact patterns, including dual-purpose communications, pre-existing documents, common-interest arrangements, and exam techniques for spotting which protection applies or has been lost

MBE Syllabus

For the MBE, you are required to understand privileges and other policy exclusions, with a focus on the following syllabus points:

• Define the elements necessary to establish the attorney-client privilege.
• Identify who holds the attorney-client privilege and how it applies to corporations and other organizations.
• Recognize situations that constitute exceptions to the attorney-client privilege (e.g., future crime or fraud).
• Determine when the attorney-client privilege has been waived, including subject-matter and inadvertent waiver.
• Define the elements of the work product doctrine and its relationship to discovery rules.
• Distinguish between qualified and absolute work product protection.
• Analyze the requirements for overcoming qualified work product protection (substantial need and undue hardship).
• Differentiate between attorney-client privilege and work product protection in litigation.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is essential for the attorney-client privilege to apply?
   1. The communication must relate to ongoing litigation.
   2. The communication must be made in confidence for the purpose of seeking legal advice.
   3. The client must explicitly state that the communication is privileged.
   4. The attorney must actually provide legal advice based on the communication.
2. A client tells her attorney, in confidence, about her plan to commit perjury at an upcoming trial. Is this communication protected by the attorney-client privilege?
   1. Yes, because it is a confidential communication between attorney and client.
   2. Yes, because the attorney is obligated to keep all client communications secret.
   3. No, because the communication concerns a future crime or fraud.
   4. No, because the attorney has not yet provided advice based on the communication.
3. An attorney interviews a key witness and prepares a detailed memorandum summarizing the witness's expected testimony and the attorney's thoughts on the witness's credibility and potential weaknesses. This memorandum is primarily protected by:
   1. The attorney-client privilege.
   2. The spousal privilege.
   3. The work product doctrine.
   4. The physician-patient privilege.
4. Under the work product doctrine, an opposing party seeks discovery of materials prepared by an attorney in anticipation of litigation. Which type of work product receives the highest level of protection?
   1. Witness statements taken by the attorney.
   2. Factual reports compiled by investigators hired by the attorney.
   3. The attorney's mental impressions, conclusions, opinions, or legal theories.
   4. Photographs of the accident scene taken by the attorney.

Introduction

In litigation, relevant evidence is not always admissible. Evidence rules include privileges and other policy-based exclusions that keep some information out of court to protect important social interests such as confidential relationships and effective legal representation.

Key Term: Privilege
A rule of evidence law that permits a person to refuse to disclose, and to prohibit others from disclosing, certain confidential information in judicial proceedings.

At a high level, two protections dominate MBE questions in this area:

• Attorney-client privilege – an evidentiary rule that bars compelled disclosure of certain confidential communications
• Work product doctrine – a discovery rule that protects materials prepared in anticipation of litigation from being obtained by opponents

They overlap but are distinct. A single item (for example, a lawyer’s memo to a client about strategy) might be protected by both. On MBE problems you must identify:

• Which doctrine (if any) applies
• Whether all elements are satisfied
• Whether an exception or waiver removes the protection

Also remember the key distinction between evidentiary protections and ethics rules:

• Attorney-client privilege is about whether a court can force disclosure of a communication.
• Work product is about whether an opponent can discover litigation materials.
• Ethical duties of confidentiality (tested mainly in Professional Responsibility, not Evidence) are broader and may require a lawyer to keep certain client information confidential even if it is not privileged. Ethical duties do not control admissibility on the MBE Evidence questions.

Procedural Background

Under the Federal Rules of Evidence:

• Privilege questions are governed by FRE 501, which adopts federal common law of privilege in federal-question cases and generally applies state privilege rules in diversity cases when state law supplies the rule of decision. The MBE uses the federal common-law approach unless the question explicitly tells you otherwise.
• Privilege and work product disputes are preliminary questions of admissibility decided by the judge, not the jury. The judge may hold a hearing outside the jury’s presence and may consider otherwise inadmissible evidence (FRE 104).

With that framework in mind, the rest of this article focuses on the two doctrines that repeatedly appear in MBE Evidence and Civil Procedure questions.

Attorney-Client Privilege

The attorney-client privilege protects confidential communications between a client and attorney made for the purpose of obtaining or providing legal advice or legal services. Its policy goal is to encourage full and frank communication so that clients can obtain accurate legal guidance.

Key Term: Attorney-Client Privilege
A privilege protecting confidential communications between an attorney and client made for the purpose of obtaining or providing legal advice.

Elements Required

For the privilege to apply, all of the following elements must be met. On the MBE, questions will often turn on which element is missing.

1. Client

There must be a client or prospective client.

• Includes individuals, corporations, partnerships, unincorporated associations, and government entities.
• A person who consults an attorney in good faith to seek legal advice is treated as a client, even if the attorney never agrees to represent them or never receives a fee.
• Minors or legally incompetent persons can be clients; their guardians or representatives exercise the privilege on their behalf.

Because the privilege is for the benefit of the client, it is interpreted broadly to include people seeking advice about whether they need a lawyer at all.

2. Attorney

The communication must be with an attorney (or someone the client reasonably believes to be an attorney) acting in a professional legal capacity.

• Includes lawyers admitted to practice and those reasonably believed to be lawyers under federal common law.
• Applies to in-house counsel as well as outside counsel.
• Covers communications with the attorney’s agents, such as paralegals, interpreters, secretaries, investigators, and consultants retained to assist the lawyer, so long as they are reasonably necessary to the provision of legal services.

Communications with someone who is not acting as a legal adviser (for example, a lawyer acting purely as a business negotiator or corporate executive) are not privileged merely because the person has a law degree.

3. Communication

The privilege protects communications, not facts or physical evidence.

• Covered communications:

  • Oral statements (in person, by phone, or via video)
  • Written messages (letters, emails, text messages)
  • Conduct intended as communication (for example, pointing to a document in response to “Which one did you sign?”)

• Not covered:

  • The facts themselves. A client cannot refuse to reveal a fact just because they previously told their lawyer about it.
  • Pre-existing documents or physical objects. If a client hands a pre-existing contract or a gun to the lawyer, the document or item itself is not privileged (though the fact that the client delivered it and what was said about it may be).
  • Non-communicative acts like showing up at a law office, unless the act itself is intended as communication.

This is a classic MBE trap: the same fact may be discoverable even though the communication of that fact to the lawyer is privileged.

4. Confidentiality

The communication must be made in confidence.

Key Term: Confidential Communication
A communication made under circumstances where the client reasonably believes it will not be disclosed to unnecessary third parties.

Key points:

• The client must reasonably believe the communication is confidential.
• The presence of necessary third parties or intermediaries (e.g., a translator, paralegal, consultant hired by the lawyer) does not destroy confidentiality.
• The presence of unnecessary third parties (e.g., a friend, a casual observer, media) ordinarily does destroy confidentiality and prevents the privilege from attaching.
• Family members:
  • If reasonably necessary (e.g., a parent accompanying a minor, a caregiver helping an elderly client), their presence does not break confidentiality.
  • If simply there for moral support for a competent adult, many courts treat them as unnecessary and find no privilege.

Eavesdropping:

• If the client is unaware of an eavesdropper (for example, a hidden recording device), the communication is still considered confidential and remain privileged.
• If the client knows others are listening who are not necessary to the consultation but proceeds anyway, confidentiality is not satisfied.

5. Legal Advice Purpose

The communication must be made for the primary purpose of seeking, obtaining, or providing legal advice or legal services.

• Legal advice can involve business, family, or personal matters, but the purpose of involving the lawyer must be legal, not purely commercial or social.
• A lawyer’s business advice (for example, suggesting a marketing strategy or negotiating price purely as a business broker) is not privileged.
• When communications mix legal and business advice, they are privileged to the extent that legal advice predominates or the business information is necessary to obtain legal advice (common with in‑house counsel).

On MBE questions, read carefully:

• If the lawyer is being copied routinely on emails simply because they are an officer of the corporation, the privilege may not apply.
• If the email is clearly seeking legal assessment (“What are our legal risks if we do X?”), that weighs strongly in favor of privilege.

Scope, Holder, and Duration

Who Holds the Privilege

The client holds the privilege, not the attorney.

• Only the client (or someone with authority to act for the client, such as a guardian or personal representative) can waive it.
• The attorney must assert the privilege on the client’s behalf when appropriate and should not unilaterally waive it.

For organizations:

• Under the prevailing subject-matter approach (from Upjohn):

  • Communications between corporate employees and corporate counsel are privileged if:
    • The communications are made at the direction of corporate superiors;
    • They concern matters within the scope of the employee’s corporate duties; and
    • They are made to help the corporation obtain legal advice.

• The privilege belongs to the entity, not individual employees.

• Corporate management (or whoever controls the entity) decides whether to assert or waive the privilege, including as to communications with former employees.

Government entities similarly can hold and waive privilege for communications between government lawyers and officials.

Duration

Under federal common law (applied on the MBE):

• The privilege survives the end of the representation.
• It also survives the client’s death. Executors or personal representatives can assert it on behalf of a deceased client.
• Some state laws recognize narrow exceptions in disputes among heirs or in will contests, but the general MBE rule is that the privilege continues post‑death unless such a specific exception applies.

This indefinite duration is itself tested: questions may ask if a lawyer can disclose a deceased client’s confidences in a later memoir or testimony—privilege usually still bars disclosure.

What Is and Is Not Covered

Common MBE traps:

• Facts themselves are not privileged.

  • A client cannot refuse to answer “Where were you on the night in question?” merely because they previously told their lawyer that information.
  • The communication (“I told my lawyer I was at home”) is privileged; the fact itself (“I was at home”) is not.

• Client identity and fee arrangements are usually not privileged.

  • The client’s name, the fact of representation, and fee arrangements generally fall outside the privilege.
  • Exception: When revealing identity or fees would effectively disclose privileged legal advice (for example, if revealing identity would reveal the legal problem being consulted about), some courts treat those as privileged.

• Physical evidence is not privileged.

  • The attorney-client privilege does not cover physical objects.
  • If a client brings a gun to the lawyer that was used in a crime, the gun is not privileged, though the communication surrounding it is.
  • What the lawyer must do with the gun is a question of professional responsibility, not privilege.

• Third-party communications:

  • Communications between the client and a non-lawyer professional (e.g., accountant) are not privileged unless the accountant is acting as an agent of the lawyer to assist in providing legal advice.
  • Some states recognize a separate accountant–client privilege; federal common law (MBE) does not.

Exceptions to Attorney-Client Privilege

The privilege is strong but not absolute. The MBE focuses on a handful of well-defined exceptions.

1. Future Crime or Fraud (Crime-Fraud Exception)

There is no privilege for communications made to:

• Plan, commit, or further a future crime or fraud, or
• Cover up an ongoing crime or fraud.

The client’s intent at the time of the communication controls:

• Privileged: Communications about past crimes (“I cheated on my taxes last year”) seeking advice about legal consequences or how to rectify the situation.
• Not privileged: Communications seeking advice on how to commit a crime/fraud or avoid detection (“How can I hide these funds from the IRS?”).

Important details:

• The exception applies even if the attorney is unaware that the client is using their services for a wrongful purpose.
• The adversary must make a prima facie showing that the communications were in furtherance of future or ongoing wrongdoing to invoke this exception; this is often done through in camera review by the judge.

On MBE questions, look for phrases like “How can we structure this transaction so regulators will not notice the kickbacks?”—this invites application of the crime-fraud exception.

2. Disputes Between Attorney and Client

Privilege does not apply in litigation between attorney and client, including:

• Legal malpractice actions by the client
• Fee collection suits by the attorney
• Disciplinary proceedings involving the representation

In those disputes, communications relevant to the issues in the case are admissible because fairness requires that the lawyer be able to defend themselves and the client be able to prove their claims.

3. Disputes Between Joint Clients

Where one lawyer jointly represents two or more clients on the same matter:

• As against outsiders, the clients’ communications with the joint lawyer are privileged.
• In a later dispute between the joint clients about the matter of joint representation, there is no privilege between them as to those joint communications.

This is often tested with business partners jointly represented by a lawyer and later suing each other.

4. Claimants Through the Same Deceased Client

In disputes among persons who all claim through the same deceased client (for example, among heirs or beneficiaries contesting a will), communications relevant to the dispute may not be privileged.

This exception is narrow but can appear on the MBE in probate-related hypotheticals.

Waiver of Attorney-Client Privilege

Key Term: Waiver
The intentional or inadvertent relinquishment of a known right or privilege, such as the attorney-client privilege or work product protection.

Privilege can be lost by waiver. The main types are:

1. Express Waiver

The client expressly authorizes disclosure or voluntarily reveals privileged content to a third party.

Examples:

• A client testifies at a deposition about what the lawyer advised, without objection.
• A client forwards privileged legal advice to a third party not reasonably necessary to the representation.

Once voluntarily disclosed outside the privileged relationship, the particular communication generally loses protection.

2. Implied (Subject-Matter) Waiver

A client who voluntarily discloses a significant part of a privileged communication usually waives the privilege as to other communications on the same subject matter, when fairness requires considering them together.

Under FRE 502(a), subject-matter waiver in a federal proceeding is limited:

• There must be an intentional disclosure;
• The disclosed and undisclosed communications must concern the same subject matter; and
• Fairness must require considering all the communications together to avoid a misleading impression.

This rule prevents a party from using privilege as both a sword and a shield—for example, selectively quoting favorable portions of a legal opinion while withholding damaging parts.

3. Failure to Assert the Privilege

If a question calling for privileged information is asked and neither the client nor the attorney asserts the privilege, that failure can operate as a waiver as to that communication.

On MBE questions, pay attention to whether the lawyer objects. If the lawyer remains silent and allows privileged content to be elicited, the privilege may be treated as waived for that testimony.

4. Putting Legal Advice “At Issue”

When a client affirmatively uses legal advice as part of a claim or defense, the privilege is waived with respect to that advice and closely related communications.

Examples:

• The client raises an advice-of-counsel defense to a willful violation or fraud claim: “I couldn’t have acted willfully; my lawyer told me this was legal.”
• The client asserts that they misunderstood a contract because of how their lawyer explained it.

In these scenarios, fairness requires that the opposing party be allowed to see the relevant legal communications to evaluate the claim.

5. Inadvertent Disclosure (Clawback Rules)

Under FRE 502(b), an inadvertent disclosure in a federal proceeding does not operate as a waiver if:

• The holder of the privilege took reasonable steps to prevent disclosure, and
• The holder promptly took reasonable steps to rectify the error (e.g., notifying the other side, demanding return or destruction of the document).

This frequently arises with large electronic document productions where a privileged email accidentally slips through. If reasonable screening steps were used and prompt corrective action is taken, the mistake will not destroy privilege.

6. Disclosure to Third Parties

Whether disclosure to a third party waives privilege depends on the role of the third party:

• Disclosure to an adversary (for example, opposing counsel or a government agency acting adverse to the client) almost always waives privilege as to the communication disclosed.
• Disclosure to a non-adverse third party may or may not waive privilege:
  • No waiver where the third party is reasonably necessary to the legal representation (e.g., translator, litigation consultant, insurer funding the defense in some circumstances).
  • Potential waiver where the third party is not necessary and is outside any recognized joint or common-interest arrangement.

Common-interest (joint-defense) doctrine:
Clients with a common legal interest (for example, co-defendants in a criminal case or co-parties in civil litigation) who share privileged communications between their lawyers generally do not waive privilege, as long as:

• Communications are made to further a joint legal strategy, and
• They are not shared beyond the common-interest group.

Note that the common-interest doctrine requires a shared legal interest, not merely a shared commercial interest.

Worked Example 1.1

Scenario: Client consults Attorney about potential liability for past tax evasion. Client truthfully discloses all relevant financial details. Later, Client is sued by the IRS. The IRS seeks to compel Attorney to testify about the conversation regarding the past evasion.

Question: Is the communication privileged?

Answer:
Yes. The communication involves a client seeking legal advice from an attorney regarding past conduct, and it was presumably made in confidence. None of the exceptions applies because the communication concerns a completed wrong, not a plan to commit future tax fraud. The client holds the privilege and can prevent the attorney from testifying.

Worked Example 1.2

Scenario: Two business partners jointly retain Lawyer to form a corporation and negotiate a key contract. Later, the partners sue each other over the contract, and one partner seeks to compel Lawyer to testify about what the other said in the joint meetings.

Question: Can the non-calling partner successfully assert attorney-client privilege to block the testimony?

Answer:
No. During the joint representation, communications with the lawyer were privileged as against outsiders, but not as between the joint clients themselves in a later dispute between them about the joint matter. The joint-client exception applies in the later adverse proceeding, so the lawyer can be compelled to testify about communications relevant to that dispute.

Worked Example 1.3

Scenario: A corporation’s CFO emails in-house counsel and the CEO: “We need legal advice about whether these payments to foreign officials violate federal law.” The CEO later forwards the email and in-house counsel’s response to an investment banker working on a merger, without restriction. In later litigation, the opposing party seeks the email chain.

Question: Has the privilege been waived?

Answer:
The original email between the CFO and in-house counsel is privileged: it is a confidential communication seeking legal advice. However, when the CEO forwards the email and counsel’s response to the investment banker—who is not reasonably necessary to obtain legal advice and is not part of a common-interest arrangement—this voluntary disclosure to a third party waives privilege as to that communication. Subject-matter waiver may extend to other communications about the same legal issue if fairness so requires.

Worked Example 1.4

Scenario: During discovery, Defendant’s lawyer inadvertently produces a privileged memo analyzing settlement strategy among 100,000 pages of emails. The production was made using standard privilege review procedures. Plaintiff’s counsel immediately recognizes that the memo is privileged and attempts to use it at a deposition.

Question: Has the privilege been waived?

Answer:
Probably not. Under FRE 502(b), an inadvertent disclosure does not operate as a waiver if the holder took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error. Given the high volume of documents and use of standard privilege review, reasonable preventive steps likely were taken. If defense counsel promptly demands return or destruction of the memo and instructs that it not be used, the court should find no waiver and bar plaintiff from using the memo.

Work Product Doctrine

Distinct from the attorney-client privilege, the work product doctrine protects materials prepared in anticipation of litigation from discovery by opposing parties. It is not an evidentiary privilege; rather, it is a qualified immunity from discovery codified in civil procedure rules (primarily Federal Rule of Civil Procedure 26(b)(3)).

Key Term: Work Product Doctrine
A rule protecting materials prepared by or for a party or its representative in anticipation of litigation or for trial from discovery by opposing parties.

The policy is to preserve the integrity of the adversary system by allowing attorneys and parties to prepare their cases without fear that their strategies, mental impressions, and investigative efforts will be freely available to the other side.

Elements Required (Work Product Doctrine)

To qualify for work product protection, the material must:

1. Be a document or tangible thing
2. Be prepared in anticipation of litigation or for trial
3. Be prepared by or for a party or its representative

1. Document or Tangible Thing

Work product typically covers:

• Written or typed documents (memos, emails, reports)
• Notes and summaries of interviews or investigations
• Photographs, diagrams, and recordings
• Data compilations assembled for litigation

Some courts also extend work product-like protection to intangible material such as an attorney’s recollections or mental impressions, but the core doctrine is clearest for tangible items.

2. Prepared in Anticipation of Litigation or for Trial

There must be a real prospect of litigation.

• Materials prepared in the ordinary course of business, for regulatory compliance, or for routine internal reporting are not work product, even if they later prove useful in litigation.
• Many courts apply a “because of litigation” test: would the document have been created in substantially the same form if no litigation were expected?
  • If yes, it is ordinary business material, not work product.
  • If no, because litigation was the motivating factor, it is work product.

Examples:

• Incident reports prepared routinely after every workplace accident, before any specific claim is threatened, may be ordinary business records, not work product.
• A detailed investigation file opened after the company receives a litigation hold letter or notice of claim is likely work product.

3. By or For a Party or Its Representative

Work product can be prepared by:

• Attorneys (in-house or outside)
• Party representatives, including employees or agents
• Insurers defending the claim
• Investigators, consultants, or experts hired by the party or its counsel

The key is that the person is acting on behalf of a party in preparing for litigation.

Work product protection applies in both civil and criminal cases, although the MBE tends to test it in civil discovery contexts.

Qualified vs. Absolute Protection

Not all work product is protected equally. The law distinguishes between ordinary (qualified) work product and opinion (absolute) work product.

Key Term: Qualified Work Product
Materials prepared in anticipation of litigation (e.g., witness statements or factual reports) that are discoverable only upon a showing of substantial need and undue hardship.

Key Term: Absolute Work Product
An attorney's or representative's mental impressions, conclusions, opinions, or legal theories concerning litigation, which are generally not discoverable.

Qualified (Ordinary) Work Product

Ordinary work product includes primarily factual information such as:

• Witness statements (written summaries or recordings)
• Chronologies or timelines of events
• Factual portions of investigative reports
• Collections of documents assembled for litigation

These materials receive qualified protection: the opposing party can obtain them only by showing both:

• Substantial need for the materials to prepare its case, and
• An inability, without undue hardship, to obtain their substantial equivalent by other means.

Examples of substantial need and undue hardship:

• Key witnesses have died, disappeared, or cannot be found, and the only record of their statements is in the other party’s files.
• The events occurred long ago, and the contemporaneous statements are uniquely probative.
• Recreating the investigation would be prohibitively expensive or practically impossible.

Even when a court orders disclosure of ordinary work product, it must protect against disclosure of mental impressions, conclusions, opinions, or legal theories embedded in the materials, often by redaction.

Absolute (Opinion) Work Product

Opinion work product consists of:

• Mental impressions and strategies
• Legal theories and arguments
• Evaluations of evidence and witnesses, including assessments of credibility and trial tactics
• Attorney notes reflecting thought processes

This category receives the highest level of protection. Courts almost never compel disclosure of opinion work product, even when the adversary shows substantial need and undue hardship, because revealing an attorney’s mental impressions would severely undermine the adversary system.

On MBE questions, when you see phrases like “the lawyer’s assessments of the strengths and weaknesses of the case” or “settlement ranges and trial strategy,” think opinion work product and near-absolute protection.

Special Work Product Rules

Several specific rules are worth remembering:

• A party is entitled, on request, to a copy of his own prior statement relevant to the action (for example, a recorded statement given to an insurer), even if it is work product. This is a special rule that does not require a showing of substantial need.
• Work product created for earlier litigation usually remains work product if the later litigation is closely related and involves similar issues. The protection does not evaporate when the first case ends.
• Work product protection applies equally to materials generated by non-attorney representatives, such as investigators or insurers, as long as they were prepared because of anticipated litigation for a party.

Waiver (Work Product Doctrine)

Work product protection can be waived, but the analysis differs from attorney-client privilege.

• Disclosure to an adversary:

  • Voluntary disclosure of work product to an adversary (for example, turning over a strategy memo to opposing counsel) usually waives protection as to the materials disclosed.
  • Subject-matter waiver for work product is narrower than for privilege; courts are reluctant to extend waiver broadly unless fairness demands it.

• Disclosure to non-adversarial third parties:

  • Sharing work product with non-adverse third parties (consultants, insurers, co-parties with a common legal interest) typically does not waive protection, so long as reasonable steps are taken to maintain confidentiality from adversaries.
  • The key question is whether the disclosure substantially increases the likelihood that an adversary will obtain the material.

• Using work product offensively:

  • If a party injects work product into the case (for example, calling their investigator to testify about the contents of a report), a court may find that work product protection is waived as to that subject matter, at least to the extent necessary to prevent misleading use.

Worked Example 1.5

Scenario: After a car accident, Plaintiff's attorney hires an investigator who interviews several eyewitnesses and prepares summaries of their accounts, including some comments by the attorney about which witnesses seem credible. Defendant's attorney seeks discovery of these interview summaries. Plaintiff's attorney objects, asserting work product protection.

Question: Are the summaries discoverable?

Answer:
The interview summaries are documents prepared by a representative (the investigator) for a party (Plaintiff) in anticipation of litigation. They are therefore work product. The factual portions—what the witnesses said—are qualified work product, discoverable only upon a showing of substantial need and undue hardship (for example, if the witnesses cannot now be located). Any notes reflecting the attorney’s mental impressions and credibility assessments are opinion work product and remain protected even if the factual portions are ordered produced. The court should redact or protect those opinion portions.

Worked Example 1.6

Scenario: In preparing a products liability case, Defendant’s lawyer writes a memo analyzing weaknesses in the defense, listing likely trial themes, and discussing bottom-line settlement ranges. Plaintiff serves a document request for “all documents relating to Defendant’s evaluation of this case,” including that memo.

Question: Is the memo discoverable?

Answer:
No. The memo is classic opinion work product: it contains the attorney’s mental impressions, legal theories, and evaluation of settlement. Opinion work product is nearly absolutely protected and is not discoverable even upon a showing of substantial need and undue hardship. The court should deny the request as to this memo.

Worked Example 1.7

Scenario: A bakery burns down. The baker’s insurer sends an adjuster to the scene the same evening. The adjuster takes photographs and writes a detailed memorandum interpreting what he saw and concluding that faulty wiring likely caused the fire. The baker later sues a roofing company, alleging that the fire was caused by their negligence. The roofer seeks discovery of the insurer’s photos and memo. The court finds that the insurer anticipated litigation as soon as it was notified of the fire.

Question: Are the photos and memo protected work product?

Answer:
Yes. The photos and memo were prepared by the insurer (a representative of the insured) in anticipation of litigation. They are work product. The roofer may obtain them only by showing substantial need and undue hardship—for example, if the scene changed significantly after the fire and the roofer could not reasonably obtain equivalent information. Even then, factual work product (the photos and factual observations) might be produced, but any opinion work product reflecting the adjuster’s or insurer’s mental impressions would be protected and subject to redaction.

Distinguishing Privilege and Work Product

The attorney-client privilege and the work product doctrine often appear together in MBE questions. It is critical to distinguish them.

Purpose and Scope

• Attorney-client privilege:

  • Purpose: Encourage candid communication between client and lawyer by protecting confidential communications made for legal advice.
  • Scope: Covers communications between client and lawyer (and necessary agents) for the purpose of seeking or providing legal advice.

• Work product doctrine:

  • Purpose: Protect the adversarial process by shielding litigation preparation materials from disclosure to adversaries.
  • Scope: Covers documents and tangible things prepared in anticipation of litigation by or for a party or its representative, including factual materials and legal analyses.

Who Holds and Asserts the Protection

• Privilege: Held by the client; asserted by the client or by the attorney on the client’s behalf.
• Work product: Held by the party and often by the attorney; either can assert protection.

When Does It Apply

• Privilege: Applies regardless of whether litigation is pending or anticipated, as long as the purpose is obtaining legal advice.
• Work product: Requires anticipated litigation or trial; no work product if the material was prepared solely for business or regulatory purposes.

Strength of Protection

• Privilege: If elements are satisfied and no exception or waiver applies, the protection is essentially absolute; the communication cannot be compelled.
• Work product:
  • Ordinary (factual) work product is qualified and can be overcome by substantial need and undue hardship.
  • Opinion work product is near absolute and rarely discoverable.

Common Overlaps and Misconceptions

• A document can be both privileged and work product (for example, a legal advice memo analyzing litigation risk). Losing one protection (say, by waiver of privilege) does not automatically destroy the other, but the facts will often lead to waiver of both if the document is shared with an adversary.
• Pre-existing documents do not become privileged simply because they are handed to a lawyer. They may become part of the lawyer’s work product file if assembled for litigation, but the business documents themselves remain discoverable from the client or original source.
• Work product is about discovery, not admissibility. A document might be work product (and thus not discoverable) but, once disclosed, may still be admissible under the normal evidence rules.

Comparative Table

Worked Example 1.8

Scenario: Before any dispute arises, Company’s CEO sends an email to in-house counsel and the CFO asking, “Should we restructure this deal to reduce our tax exposure?” Later litigation ensues with a third party, and opposing counsel seeks the email in discovery.

Question: Is the email protected by (i) attorney-client privilege, (ii) work product, or both?

Answer:
The email is protected by attorney-client privilege: it is a confidential communication to counsel seeking legal advice about tax consequences. However, at the time it was sent, there was no identified prospect of litigation—this was routine transactional planning—so it was not prepared “in anticipation of litigation.” Thus, it does not qualify as work product. On these facts, only privilege applies.

Worked Example 1.9

Scenario: After a serious workplace accident, Company’s safety department prepares its usual internal accident report, as required by policy. Several weeks later, after receiving a threatening letter from an injured worker’s attorney, Company’s counsel directs the safety department to prepare a detailed follow-up investigation report for counsel. In later litigation, Plaintiff seeks both reports.

Question: Which documents are covered by the work product doctrine?

Answer:
The initial accident report, prepared as part of routine business and safety compliance, is not work product because it would have been created regardless of anticipated litigation. It may still be discoverable, subject to any other objections. The follow‑up report, prepared at counsel’s direction because of anticipated litigation, is work product. Plaintiff may obtain it only on a showing of substantial need and undue hardship, and opinion portions reflecting mental impressions or strategy must remain protected.

Key Point Checklist

This article has covered the following key knowledge points:

• Attorney-client privilege protects confidential communications between attorney and client made for the purpose of obtaining or providing legal advice.
• Privilege applies to individuals, organizations, and government entities; for organizations, the entity (not individual employees) holds the privilege and management decides whether to waive it.
• Privilege covers communications, not the facts themselves, not client identity or fee arrangements (subject to narrow exceptions), and not pre-existing documents or physical evidence.
• The main exceptions to attorney-client privilege are the crime-fraud exception (future or ongoing crime or fraud), disputes between attorney and client (e.g., malpractice or fee disputes), joint-client disputes, and certain disputes among claimants through a deceased client.
• Privilege can be waived expressly, by subject-matter waiver (under FRE 502 when there is an intentional partial disclosure and fairness requires full disclosure), by failure to assert it when privileged information is sought, or by putting legal advice at issue; inadvertent disclosure may be cured without waiver if promptly addressed under FRE 502.
• The common-interest doctrine allows clients with a common legal interest to share privileged communications without waiver, provided the communications further a joint legal strategy and are not shared more broadly.
• The work product doctrine (FRCP 26(b)(3)) protects documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative, including attorneys, insurers, and investigators.
• Ordinary (qualified) work product consists mainly of factual materials, which may be discovered only upon a showing of substantial need and undue hardship; opinion (absolute) work product encompasses mental impressions, conclusions, and legal theories and is almost never discoverable.
• Work product protection can be waived by disclosure to adversaries or by using work product offensively, but sharing with non-adverse parties (such as co-parties with a common legal interest or insurers) usually does not waive protection if confidentiality against adversaries is maintained.
• A party is entitled to obtain a copy of its own prior statements, even if they are work product; work product from prior, related litigation usually remains protected.
• Attorney-client privilege and work product protection are distinct doctrines: privilege focuses on confidential legal communications, applies regardless of litigation, and is controlled by the client; work product focuses on litigation preparation materials, requires anticipated litigation, and belongs to the party/attorney.
• On MBE fact patterns, you must carefully identify (1) whether a communication is confidential and for legal advice (privilege), (2) whether a document was prepared because of anticipated litigation (work product), and (3) whether any exceptions or waivers defeat the protection.

Key Terms and Concepts

• Privilege
• Attorney-Client Privilege
• Confidential Communication
• Waiver
• Work Product Doctrine
• Qualified Work Product
• Absolute Work Product