Which is stronger, the attorney client privilege or work product protection? Many would say that attorney-client privilege is more secure and easier to defend than work-product because the privilege is absolute; if a document is privileged and that privileged has not been waived, the disclosure of the document cannot be compelled. Work-product by contrast is a qualified protection. Even if a document is subject to work-product protection, its disclosure can still be compelled if the party seeking disclosure can demonstrate a substantial need for the document and cannot obtain the protected information elsewhere without undue hardship. But a recent Massachusetts Superior Court decision shows that work product protection may withstand a waiver challenge where the attorney-client privilege will not.
In Ace American Insurance Co. v. Riley Brothers, Inc., 30 Mass L. Rptr. 116 (June 27, 2002), the defendant filed a motion for protective order seeking to avoid disclosure of a three-page memorandum describing an excavation accident that damaged an underground utility system incident and was sure to lead to litigation. The memo was prepared by in-house counsel and sent to the defendant’s insurance broker in order to be passed to the insurance-appointed attorney who would defend the case that the defendant knew was coming. The Court held that the defendant waived the privilege when it sent the memo to the insurance broker because the broker was not a necessary recipient of the document in order to facilitate communication with the defendant’s outside counsel. The broker was essentially a third-party to the attorney-client relationship.
However, the court found that disclosure to the broker did not waive work-product protection. Even though the work product protection is qualified it is, according to the opinion, harder to waive. Only disclosing the protected document in a way that is inconsistent with keeping it from an adversary waives the work-product protection. Thus, unlike privileged communications, disclosure to any third party will not waive the protection.
*This blog entry was originally posted on Legal OnRamp. Goulston & Storrs attorneys provide blogs, discussion forums, collaboration, and pertinent news and related key cases regarding attorney-client privilege and work product protection information for Legal OnRamp.
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In the end the court ordered some of the work-product information disclosed because the defendant demonstrated that it had no other way of obtaining the information. But it protected opinion work product from disclosure even though the privilege had been waived.