The attorney-client privilege is one of the oldest common law privileges, whose purpose is “to encourage full and frank communication between attorneys and their clients.”1  The privilege protects communications between attorneys and their clients, and also extends to the agents of both attorneys and clients.

In contrast to the attorney-client privilege, which serves to enhance communication and provide society with a better judicial system, the work-product doctrine exists to protect lawyers from having adversaries benefit from the “fruits of their labor.”  Its purpose is “to permit attorneys to prepare for litigation with ‘a certain degree of privacy,’ and without undue interference or fear of intrusion or exploitation of one’s work by an adversary.”2

The work-product doctrine, as to tangible items, is codified by Rule 26(b)(3) of the Federal Rules of Civil Procedure and applies only to those items prepared in “anticipation of litigation.”  This doctrine, then, may not apply to some materials that would otherwise be protected from disclosure if litigation was not anticipated.  Even where the doctrine applies, the production of work-product may be compelled where the party seeking the information demonstrates “substantial need” and “undue hardship.”