For the attorney-client privilege and the work product doctrine to provide the salutary benefits of encouraging clients to make full disclosure to their attorneys, and permitting attorneys a “zone of privacy” within which to develop their legal theories and strategies, knowing how to establish and preserve those protections is critical. Yet the frequency with which these doctrines are litigated shows that they are often misunderstood or misapplied. Three recent decisions by judges of the U.S. District Court for the Southern District of New York expose some common misconceptions regarding these doctrines and offer some valuable guidance for those litigating privilege and work product disputes.
Work Product Materials Need Not Be Prepared by or at the Direction of an Attorney. In a decision filed in Wultz v. Bank of China,1 Southern District Magistrate Judge Gabriel W. Gorenstein addressed the threshold issue of whether the work product doctrine protects from disclosure materials that were prepared by or for someone other than an attorney. The materials at issue consisted of documents generated as a result of investigations conducted by the Bank of China upon receipt of a demand letter notifying the bank that plaintiffs, the victims of a terrorist attack in Israel, intended to file suit against the bank in connection with transactions it executed for a senior operative of the terrorist organization that carried out the attack.
