Who Owns Work Product?

This article explores the issue of who has, or who should have, the power to control or waive the work-product privilege: the attorney or the client. The Restatement of the Law Governing Lawyers takes the posi-tion that work-product privilege is entirely subject to client control. Sev-eral American jurisdictions have taken the opposite position—that the privilege protects the ability of the bar to operate freely and therefore be-longs to the lawyers who have created the product.Case law has thoroughly identified and vetted the theoretical justifica-tions for the privilege itself. However, as in many other areas of the law, insufficient attention has been paid to the theoretical justifications for waiver. The failure of scholars, courts, and rule makers to distinguish is-sues regarding control of the privilege from the substantive underpin-nings for the privilege has led to rules that are both simplistic and inade-quate.This article identifies the possible theoretical approaches to delineating an appropriate control and waiver principle, some reconcilable only with the Restatement rule, others with the contrary position. It then highlights why the choice of theory becomes significant. The analysis illustrates that blind application of either extreme approach fails to account for im-portant considerations underlying the work-product principle. The arti-cle thus proposes a model control and waiver statute that would more di-rectly serve the reasons for which work-product privilege developed.

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