The ancient attorney-client privilege: (1) protects communications primarily motivated by clients' request for legal advice, regardless of any litigation on the horizon; and (2) protects such communications absolutely. The relatively new work product doctrine differs dramatically from the attorney-client privilege in those two ways (among many others).
In Molbogot v. MarineMax East, Inc., Civ. No. 20-cv-81254-MATTHEWMAN 2021 U.S. Dist. LEXIS 45149 (S.D. Fla. March 10, 2021), the purchaser of an expensive boat sued the seller for alleged defects, and then sought discovery from the boat’s manufacturer Sea Ray (to which the seller had returned the boat after the purchaser’s complaints). Sea Ray claimed work product for several "communications between Sea Ray and…an electrical engineer/surveyor, discussing his findings upon inspection of Plaintiff’s vessel." The court first held that the work product doctrine applied as of March 2, 2020 – "when Plaintiff’s current legal counsel sent correspondence to Sea Ray providing a list of issues regarding the vessel Plaintiff had purchased." This type of implicit threat constitutes one of what can be called "trigger events" justifying work product protection, which unlike the attorney-client privilege protects communications only when the creator reasonably anticipates or is in litigation. Second, the court concluded that Plaintiff could overcome Sea Ray’s work product claim for the engineer’s inspection findings, because "Plaintiff cannot obtain the photographs or the findings in the [engineer's] report from any other source because the vessel went to the factory and was altered immediately after [the Sea Ray engineer's] inspection."
Unlike the attorney-client privilege, the work product doctrine: (1) applies only at certain times; and (2) is not absolute. For these and other reasons, corporations and their lawyers should always consider both protections.
Published June 1, 2021.
