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Attorney Client Privilege & Work Product Doctrine – An Analysis From Outsourcing Perspective

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Under the common law rules of evidence and procedure, certain communications are protected from being revealed against the wishes of the person in a court of law as evidence. The law in most countries provide such exceptions to confidential communications, such as between an attorney and his client. The US laws also providesuch immunity to certain type of communicationsfor protecting sensitive information between the attorneys andthe client from being produced in the court of law. The purpose of this protectionis to allow complete and transparentdiscussion between the client, attorney and their agents; which in turn allows the attorney to give effective representation to his client in the court of law.More specifically, in the USA, such information exchange is afforded two types of protection: Attorney–client privilege and Work product protection. Each of the protection differs in scope and meaning, which is explained in subsequent paragraphs.

What is secured under Attorney client privilege?
Strictly speaking, the Attorney-client privilege covers any oral or written communications(or information exchange) between the client and his attorney. However, over theyears, the US courts have awarded a very liberal interpretation to the Attorney-client privilege and have included multitudeof other types of information exchange within the ambit of the Attorney-client privilege. For example, in Golden Trade v. Lee Ansarel Co., 143 F.R.D. 514, 518 (S.D.N.Y. 1992) the Hon’ble court held that the Attorney-client privilege may also cover communications between the client and his attorney’s representative, between the client’s representative and the attorney, and between the attorney and his representative. .”.

Clearly, in the above case the Hon’ble court held that the communication between an Attorney, and his representative falls under the scope of Attorney-client privilege. The court did not discuss whether or not the representative has to be present in the territorial boundaries of the USA, in order for the Attorney-client privilege to be applicable. However, in Foseco, 546 F.Supp. 22: the court surpassed the territorial boundaries of the USA and held that the communications between the Plaintiff’s U.S. patent counsel and the Plaintiff’s British patent agent were covered under Attorney-client privilege. The court explained, “These communications are in essence communications between the client and the client’s attorney. The British patent agent acted at the direction and control of the plaintiff. The Court observed that the communications made between [plaintiff], through its patent agent, and its U.S. patent counsel are privileged.

What is secured under Work product doctrine?
The work product doctrine, also known as “Work product privilege” includes discovery documents or material things prepared like written statements, private memoranda, fact chronologies, mental impressions, personal beliefs & any information assembled by attorneys in anticipation of litigation.

Under the Work product doctrine, work product, such as a claim chart prepared by an outsourcing firm, may have a nearly absolute protection. As the Supreme Court observed in Hickman v. Taylor, 329 U.S. 495 (1947), “the work-product doctrine is critical to a lawyer’s ability to render professional services to his client: it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant go from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. This work is reflected of course, be in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.”

How the Attorney client privilege and work product doctrine differ?
Although the two protections are equally important, but these privilegesdiffer from one another in scope and coverage, the work-product doctrine is more inclusive (is broader in scope) than attorney–client privilege. The attorney–client privilege only includes communications between the attorney and the client (and their representatives when they are acting on behalf of the parties); whereas, work-product privilege includes materials collected by the attorney such as interrogatories, signed statements, other information acquired for the prosecution or defense of a case. Additionally, the work-product privilege also covers material prepared by person other than the attorney him/her self.

The re Grand Jury Proceedings, 601 F.2d 162, 171 (5th Cir. 1979)” clearly discloses the difference between these two privileges stating that “the work product doctrine is broader than the attorney-client privilege, it protects materials prepared by the attorney, whether or not disclosed to the client, and it protects material prepared by agents for the attorney.” However, the attorney client privilege protects only communications between the client, attorney and their representatives.

With the above context, it is not very difficult to infer the intention of the US courts from the above cases, the courts seem to be inclined towards providing a fairly broad interpretation to the Attorney-client privilege, and therefore, its fairly evident that the following types of communications, occurring when the works is outsourced outside US, are covered under Attorney-client privilege and/or Work product protection:

  • Work product prepared by an Outsourcing firm at the request of the US Attorney, as the outsourcing firm is preparing material for Attorney at his request.
  • All communications between an Outsourcing firm and the Attorney’s client, as the outsourcing firm is acting on behalf of Attorney, as his representative.

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