Attorney-client privilege protection lasts forever, but determining work product doctrine protection’s duration presents a more subtle analysis. Most courts protect work product if it is sought in later litigation related in some way to the litigation for which it was created. These opinions reflect a wide spectrum of the relationship that will immunize work product from later discovery (“related,” “closely related,” etc.). As a practical matter, this “relatedness” requirement amounts to lasting protection — because presumably no one would want such work product in a totally unrelated case.
But nearly every court views a specific type of discovery very differently. In Glass v. Village of Maywood, Case No. 22 CV 164, 2023 U.S. Dist. LEXIS 179074 (N.D. Ill. Oct. 4, 2023), a criminal defendant acquitted of illegal firearm possession sued the defendant Village for malicious prosecution. Acknowledging a 2006 Seventh Circuit Court case stating that generally work product protection “endures after termination of the proceedings for which the documents were created,” the court nevertheless recognized an exception in such malicious prosecution claims. Id. at *6 (citation omitted). Among other things, the court noted that the Cook County State’s Attorney’s Office “is not an adversarial party in this case and the criminal matter has long since resolved.” Id. (citation omitted).
Apart from this widely-recognized narrow exception when a civil action follows a criminal case, most litigants should feel fairly secure that their work product will remain undiscoverable forever.
Published March 25, 2024.