Attorney-Client Privilege and Work Product Protection during Investigations Checklist

Summary

This checklist addresses the application of the attorney-client privilege and work product protection doctrine during workplace investigations. Under federal common law, the attorney-client privilege protects communications between an attorney and a client from disclosure when the primary purpose of the communication is to obtain and/or provide legal advice or assistance and the communication was intended to be confidential and is maintained as confidential. Under federal law, the work product protection protects from disclosure documents that are prepared in anticipation of litigation by a party, the party's attorney, or the party's representative; courts "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Fed. R. Civ. P. 23(b). This checklist addresses federal law and does not cover all potential state and local law distinctions.