Privilege vs. Work Product — Opposite Burdens on Waiver

One would have thought that any party asserting a waiver would bear the burden of proving it. Not necessarily. Many courts hold that a party asserting attorney-client privilege bears the burden of establishing that the privilege has been both claimed and not waived. See, e.g.:

One of the elements that the asserting party must prove is that it has not waived the privilege. Weil v. Investment/Indicators, Research and Mgt., Inc., 647 F.2d 18, 25 (9th Cir. 1981). Therefore, the party asserting the privilege has the burden of proving its applicability and non-waiver. Nutramax Labs., Inc. v. Twin Labs. Inc., 183 F.R.D. 458, 472 (D. Md. 1998)(citing Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)); see Katz, 191 F.R.D. at 437 n.3.

Greene, Tweed of Delaware, Inc. v. Dupont Dow Elastomers, LLC, 202 F.R.D. 418, 423 (E.D. Pa. 2001).

Not so with work product. As District Judge Nora Barry Fischer ruled on Monday in Kraus Indus. v. Moore, 2008 U.S. Dist. LEXIS 10065 (W.D. Pa. Feb. 11, 2008), the party asserting work product protection need not prove non-waiver — it is the burden of the party asserting work product waiver to prove it:

"[U]nlike the attorney-client privilege, the party invoking the work product doctrine does not bear the burden of proving non-waiver." In re National Medical Imaging, L.L.C., No. 05-12714DWS, 2005 WL 3299712, at *4 (Bkrtcy. E.D. Pa. Oct. 13, 2005) (citing Greene, Tweed of Delaware, Inc. v. Dupont Dow Elastomers, LLC, 202 F.R.D. 418, 423 (E.D. Pa. 2001)). In other words, Defendants[the parties asserting waiver] bear the burden to establish waiver of the work product doctrine....

Held by Judge Fischer, a “ lone sentence consisting entirely of argument of counsel fails to establish waiver” of work product protection.

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