Last week’s Privilege Point described generally accepted principles under which the attorney-client privilege can protect intra-corporate communications without a lawyer’s involvement. To some lawyers’ surprise, the litigation-focused work product doctrine protection is even more expansive.
In Beneschott v. Toptal, LLC, the court pointed to Florida’s work product rule (which parallels the federal rule) in explaining that work product protection can cover material any party representatives prepare on “their own behest and without counsel’s direction.” — So. 3d —, 2025 Fla. App. LEXIS 2990, at *7-8 (Fla. Dist. Ct. App. Apr. 17, 2025) (citation omitted). In fact, protected work product creation “may involve the party alone without any representative” such as a lawyer. Id. at *7. In other words, someone who has never even met a lawyer can prepare protected work product if primarily motivated by litigation or anticipated litigation.
It may be a blow to lawyers’ egos, but the attorney-client privilege and the work product doctrine can apply without their involvement.
