“The scope and application of the attorney-client privilege and its companion, the work-product doctrine, are of continuing interest and importance to lawyers and, in particular, to trial lawyers,” wrote Janet M. Cooper, chair of the ABA Section of Litigation’s Monograph Committee in the preface to the first edition of The Attorney-Client Privilege and the Work-Product Doctrine in 1983.
Today, a computer search of these issues in federal court opinions is likely to yield nearly 200 results each month. In short, 34 years later, these doctrines continue to be of interest and importance to trial lawyers.
The work-product doctrine came into being after the U.S. Supreme Court issued Upjohn Co. v. United States in 1981. In response, the Section of Litigation expanded a 100-page binder presentation by the Section’s Trial Practice Committee at the ABA’s 1980 Annual Meeting into book form. An instant classic, the book remains as important and valuable today as it was when first published.
Considering the statistics quoted in the second paragraph, it is no small wonder that the 100-page binder has morphed into the two-volume set that comprises the Sixth Edition. With its highly organized and detailed index, the book continues to be the “go-to” source for a lawyer with a privilege problem. Spend a few minutes reading the index and you are likely to hone right in on the line of cases that matches the facts of your case.
Perhaps that is the book’s greatest value. “Privilege” is an easily and quickly raised shield. Determining if a privilege truly exists—and whether an exception may trump the privilege—involves a more subtle analysis. As Epstein writes, “[t]he privilege does not protect everything that attorneys seek to garb in its protective cloak. Compelled disclosure in the litigation context is far more frequent than many an attorney realizes.”
Volume I covers the attorney-client privilege and has grown by 30 percent, with 248 more pages. Among substantive areas where the book includes deeper coverage of this topic is “scope of privilege forfeiture [waiver].” In particular, it offers additional nuance on confidentiality agreements before disclosure of privileged documents to the government, the effect of Federal Rule of Evidence 502 on inadvertent disclosure, and withdrawal of a claim or defense that would result in forfeiture of privilege.
Volume II of the book continues to deal primarily with the work-product doctrine, although it now increasingly uses the term “work-product protection.” The work-product section affords deeper treatment of disclosures to parties without a common litigation or commercial interest, disclosures within a corporate or government entity, as well as Freedom of Information Act requests and settlement documents.
As in earlier editions, the book finishes with an overview of factors common to both the attorney-client privilege and work-product protection. This section has grown by over 50 percent, adding 122 pages, including a section on redaction.
No book is perfect, and The Attorney-Client Privilege and the Work-Product Doctrine is no exception. An area where it could improve might be by adding a table of cases sorted by jurisdiction. The practitioner who focuses a substantial portion of his or her practice on privilege litigation within a given jurisdiction may wish to also explore whether his or her state has a state-specific guide, law review article, or treatise on the topic.
For any serious practitioner who faces these issues two or three times a year (or more), The Attorney-Client Privilege and the Work-Product Doctrine, Sixth Edition, remains an extremely prudent investment.
Joseph P. Beckman is an associate editor for Litigation News.
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